dissenting:
The lawyer appointed to defend Walter Mickens on a capital murder charge in Virginia had been representing the murder victim on criminal charges at the time of his death. The state judge who made the appointment was involved in both eases and knew or should have known of the apparent conflict. No one told Mickens about the conflict problem, so he could not object. Once the back-to-back representation came to light after Mickens had been sentenced to death, the apparent conflict proved to have been a real one. None of this poses a problem, according to the majority, because the lawyer did a passable job in defending Mickens. I respectfully dissent because there is a serious Sixth Amendment violation. A trial judge has a constitutional duty to look into an apparent conflict, even if there is no objection. See Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). When a trial judge ignores an apparent conflict, a defendant need only show that his lawyer labored under an actual conflict to establish a Sixth Amendment claim. The defendant is not required to show that the actual conflict adversely affected his lawyer’s performance. Here, the judge who appointed the lawyer for Mickens ignored the apparent conflict; and, as it turns out, the lawyer was actually saddled with a genuine conflict while he represented Mickens. Mickens’s Sixth Amendment right to conflict-free counsel was therefore violated, and he is entitled to a new trial.
I.
On March 20,1992, Bryan Saunders was appointed to represent Timothy Hall on assault and concealed weapon charges pending in Newport News, Virginia. (It was Hall’s mother who had accused him of assaulting her.) Hall met promptly with Saunders, and they discussed the circumstances surrounding each of the charged crimes. Within a matter of days, on March 30, 1992, Hall’s nude body was found near the James River, and foul play was evident. The gruesome nature of the crime against Hall was prominently reported by the news media. On April 3, 1992, state judge Aundria Foster dismissed the charges against Hall on account of his murder. Judge Foster’s handwritten order of dismissal was entered on a single-page docket sheet that identified Saunders as Hall’s lawyer. The next business day Judge Foster appointed Saunders to represent Mickens, who had been charged in Hail’s murder. Despite the fact that Saunders was representing Hall on criminal charges at the time of his death, Judge Foster did not make any inquiry into whether Saunders would have a conflict in representing Mickens. As the district court concluded, Judge Foster knew or should have known of the “apparent possible conflict.” Mickens v. Greene, 74 F.Supp.2d 586, 613-15 (E.D.Va.1999).
*365Because Saunders’s loyalty was subject to question when he was appointed to represent Mickens, Saunders himself had the duty to inform Mickens of his prior representation of Hall and to give Mickens the opportunity to decline his services. See Va.Code Profl Responsibility DR 5-105(A) (Michie 1992). Saunders, however, said nothing to Mickens, or to the court for that matter. Saunders went on to represent Mickens at the guilt phase of his murder trial and at sentencing. Although Saunders was assisted by court-appointed co-counsel, Saunders was responsible for about ninety percent of the workload. Saunders never disclosed to his co-counsel that he had represented Hall. Several years after Mickens had been sentenced to death, Mickens’s federal habeas counsel stumbled onto the fact that Saunders was representing the murder victim (Hall) at the time of the offense. That is the only reason we have this case today.
II.
The Sixth Amendment guarantees a defendant in a criminal case the right to effective assistance of counsel, and this includes the right to a lawyer who is free of conflicts of interest. See Cuyler v. Sullivan, 446 U.S. 335, 345-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Trial judges have a special duty to enforce the right to conflict-free counsel. See generally Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) (emphasizing that “ ‘[u]pon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused’ ”) (quoting Glasser v. United States, 315 U.S. 60, 71, 62 S.Ct. 457, 86 L.Ed. 680 (1942)). A series of three Supreme Court cases have clarified the duty of trial judges in policing conflict situations and have established what a defendant must show to obtain a new trial when the judge has ignored an apparent conflict.
In Holloway a public defender representing three defendants in a robbery and rape case moved on conflict grounds to have separate counsel appointed before the trial began. The trial judge “failed to take adequate steps” to explore the risks of a conflict and denied the motion. Holloway, 435 U.S. at 487, 98 S.Ct. 1173. The Court held that when a trial judge fails to inquire in such a circumstance, prejudice to the accused is presumed, and automatic reversal is warranted. In other words, the defendants were not required to show that their lawyer labored under an actual conflict of interest or that an actual conflict adversely affected his performance. See id. at 488-89, 98 S.Ct. 1173. The Holloway Court explicitly left open the question of whether (or under what circumstances) the Sixth Amendment imposes an independent duty on a trial judge to inquire into a potential conflict when there is no objection or motion. See id. at 483-84, 98 S.Ct. 1173.
Holloway was followed by Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), where two privately retained lawyers represented three defendants who were accused of the same murders but tried separately. In Sullivan the only defendant to be convicted claimed that his right to conflict-free counsel had been violated even though there was no timely objection to the multiple representation. The Court said that the defendant’s claim raised the issue “expressly reserved in Holloway v. Arkansas,” that is, “whether a state trial judge must inquire into the propriety of multiple representation even though no party lodges an objection.” Sullivan, 446 U.S. at 345, 100 S.Ct. 1708. The Supreme Court held that “[ujnless the trial court knows or reasonably should know that a particular conflict •exists, the court need not initiate an inquiry.” Id. at 347, 100 S.Ct. 1708. In other words, a trial judge has a constitutional duty to inquire when a conflict is sufficiently apparent. Because the situation in Sullivan did not suggest that the trial judge should have reasonably known about any conflict, the judge was under no affirmative duty to inquire. See id. For that *366particular situation — when the trial judge has no duty to inquire — the Court in Sullivan announced the defendant’s burden for establishing a Sixth Amendment violation: he “must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Id. at 348, 100 S.Ct. 1708. Sullivan, however, did not articulate the defendant’s burden when a trial court has a duty to inquire, but fails to fulfill it.
Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981), answered the question left open in Sullivan: more specifically, what must a defendant demonstrate when he did not raise the conflict issue at trial, but the situation nevertheless triggered the judge’s duty to inquire and the judge did nothing. In Wood two individual defendants in an obscenity case had been represented by a lawyer hired by their employer, and the record suggested that the employer might have been more interested in pressing broader legal principles than in seeking lenient treatment for its employees. See id. at 268, 272-74, 101 S.Ct. 1097. There was no objection to the representation, but the trial judge was faced with an “apparent” conflict, one that was clearly suggested by the circumstances. See id. at 262, 101 S.Ct. 1097. Because there was an apparent conflict, Wood held that the judge had a constitutional duty to inquire, despite the absence of an objection. See id. at 272-74, 101 S.Ct. 1097. This is consistent with Sullivan, which requires a trial court to “initiate an inquiry” when it “knows or reasonably should know that a particular conflict exists.” Sullivan, 446 U.S. at 347, 100 S.Ct. 1708. In Wood the trial court’s failure to fulfill its constitutional duty to inquire carried the following consequence, according to the Supreme Court:
[The state] court should hold a hearing to determine whether the conflict of interest that this record strongly suggests actually existed at the time of the probation revocation or earlier. If the court finds that an actual conflict of interest existed at that time, and that there was no valid waiver of the right to independent counsel, it must hold a new revocation hearing that is untainted by a legal representative serving conflicting interests.
Wood, 450 U.S. at 273-74, 101 S.Ct. 1097. Simply put, the petitioners were only required to show an actual conflict. They were not required to show that the actual conflict adversely affected their lawyer’s performance.
Holloway, Sullivan, and Wood deal with three separate circumstances in which conflict of interest claims arise under the Sixth Amendment. The first is when a defendant objects to his representation on the basis of a conflict and the trial judge fails to inquire into the merits of the objection. In this situation, the defendant is entitled to automatic reversal and a new trial. See Holloway, 435 U.S. at 488-89, 98 S.Ct. 1173. The second circumstance is when there is no objection to the representation, but the judge knew or reasonably should have known about an apparent conflict. If the judge fails to inquire in this situation, the defendant is only required to show that his lawyer labored under an actual conflict. See Wood, 450 U.S. at 273-74, 101 S.Ct. 1097. The third circumstance is when there is no objection, and the conflict is not apparent to the judge. In that case, the defendant must show that his lawyer labored under an actual conflict and that the conflict adversely affected his lawyer’s performance. See Sullivan, 446 U.S. at 348,100 S.Ct. 1708.
The majority’s critical mistake is overlooking the careful distinction the Supreme Court made in Sullivan between the second and third situations. The distinction turns on whether the trial court faces an apparent conflict. The majority ignores this distinction and concludes that unless there is an objection — no matter how obvious the conflict might appear to the trial judge — the defendant must still demonstrate both actual conflict and adverse ef-*367feet when the judge has failed in his constitutional duty to inquire.
The majority’s mistake begins with its treatment of Sullivan. The Supreme Court in Sullivan held that whether or not there is an objection, a trial court has a duty to inquire into an apparent conflict. The Court was clear: “Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.” Id. at 347, 100 S.Ct. 1708. The majority erroneously concludes that this statement is nothing more than a recitation of the Holloway holding, that is, a trial court must inquire into a conflict when there is an objection. See ante at 357-58. I respectfully suggest that the majority’s reading is wrong for several reasons. First, if Sullivan was simply echoing Holloway, surely the Court would have cited Holloway. Instead, the Court cited to Foxworth v. Wainwright, 516 F.2d 1072, 1076-77 (5th Cir.1975), and United States v. Medel, 592 F.2d 1305, 1312-13 (5th Cir.1979), both of which stand for the principle that when a conflict is sufficiently apparent, a trial judge has a constitutional duty to inquire, even if there is no objection.* Second, the Court in Sullivan pointed out that the defendant’s claim raised the issue “expressly reserved in Holloway v. Arkansas,” specifically, “whether a state trial judge must inquire into the propriety of multiple representation even though no party lodges an objection.” Sullivan, 446 U.S. at 345, 100 S.Ct. 1708. The Court, therefore, was careful to explain that the defendant’s claim raised an undecided issue: whether the trial court has any Sixth Amendment duty to inquire into a conflict situation when there is no objection. The Court decided this issue by declaring that a trial court “must initiate an inquiry” when it “knows or reasonably should know that a particular conflict exists.” Id. at 347, 100 S.Ct. 1708. This statement was not a simple recitation of Holloway’s holding, but rather a new constitutional rule. Third, the Court’s actual analysis of whether “the trial court [knew] or reasonably should [have known]” that a conflict existed shows that the Court was going beyond Holloway, where the presence of an objection dictated the outcome. The Sullivan Court, in deciding that the trial judge was under no duty.to inquire, noted that there was no objection to the representation and that the defense strategy did not suggest a conflict. See Sullivan, 446 U.S. at 347, 100 S.Ct. 1708. If the defendant’s Sixth Amendment claim had been only a Holloway claim, the lack of an objection would have (by itself) defeated the claim. There would have been no reason for the Court to explain that the defense strategy did not suggest the presence of any conflict. Fourth, the majority’s reading of Sullivan is contrary to the plain language of the holding in the case. The Supreme Court said that a trial court has a duty to inquire if it “should have known” about a conflict. This means that the trial court’s duty to inquire is not limited to situations where there is an actual objection. ■ Accordingly, it is clear that Sullivan held that in the absence of an objection, a trial judge still has a duty to inquire if the conflict is sufficiently apparent.
In light of Sullivan the majority’s analysis fails as a matter of logic. The majority holds that in every case where there was no objection, the convicted defendant (in *368order to obtain relief) must show actual conflict and adverse effect, regardless of whether there was an apparent conflict when the case was tried. Under the majority’s rule, it makes no difference whether the trial judge had a constitutional duty to inquire because the defendant must always prove the same two conditions. Sullivan, however, dictates that there is a distinction between cases in which the trial judge has a duty to inquire and those in which he does not. As a result, it is simply wrong to hold every defendant to the same burden regardless of whether the trial court was under a duty to investigate an apparent conflict. Wood v. Georgia makes that clear.
This brings me to the majority’s next critical mistake, its treatment of Wood v. Georgia. The plain language of Wood provides that when a trial court fails to fulfill its constitutional duty to inquire and there was no objection, a defendant is only required to establish an actual conflict. Wood, 450 U.S. at 273-74, 101 S.Ct. 1097. The majority does not deny that Wood's remand instructions say as much. The majority, however, advances two reasons why we should not take Wood literally, but neither reason is persuasive. First, the majority says that to dispense with a showing of adverse effect, we must read Wood to have overruled Sullivan by implication. The majority then cites the canon that “overruling by implication is not favored.” Ante at 359 (citing Catawba Indian Tribe v. South Carolina, 978 F.2d 1334, 1347 (4th Cir.1992)). However, as shown above, Wood did not overrule Sullivan in any way. Rather, Wood simply answered the question left open in Sullivan. As a result, the cited canon has no relevance to this case. Second, the majority claims that Wood’s reference to “actual conflict” in its holding is mere “shorthand” for requiring both actual conflict and adverse effect. Ante at 360. The majority arrives at this conclusion because the Wood Court, in discussing the facts of the case, questioned whether the lawyer’s performance (“his basic strategic decisions”) were influenced by a conflict. See ante at 360 (quoting Wood, 450 U.S. at 272, 101 S.Ct. 1097). The majority concludes that if only an actual conflict was required, the Court would not have made any reference to whether the lawyer’s work had been affected. However, the fact that a lawyer’s performance was affected can be evidence of an actual conflict. Of course, a defendant can establish that his lawyer labored under an actual conflict without showing a detrimental effect on the representation. Nevertheless, the fact that a lawyer fell down in his performance may be a strong indication that he did labor under an actual conflict. See United States v. Tatum, 943 F.2d 370, 375 (4th Cir.1991) (“The two requirements, an actual conflict of interest resulting in an adverse effect on counsel’s performance, are often intertwined, making the factual analyses of them overlap.”). Therefore, it is not surprising that the Wood Court mentioned the quality of performance, even though the holding only required a showing that the lawyer labored under an actual conflict.
The final mistake the majority makes is not acknowledging the importance of Sullivan and Wood to our system of justice. Again, the Supreme Court distinguishes between the situation where the trial judge ignores an obvious conflict and the situation where the conflict is not apparent. This distinction takes into account the broader harm caused if a judge conducts a trial while ignoring an apparent conflict. Allowing a judge to ignore a conflict “invites disrespect for the integrity of the court,” Wheat v. United States, 486 U.S. 153, 162, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (internal quotations marks omitted), and “resultfs] in the erosion of public confidence in the integrity of the bar and of the legal system.” United States v. Collins, 920 F.2d 619, 627 (10th Cir.1990) (internal quotation marks omitted). Courts in our country “have an independent interest in ensuring that criminal trials are conducted within the ethical *369standards of the profession and that legal proceedings appear fair to all who observe them.” Wheat, 486 U.S. at 160, 108 S.Ct. 1692. These concerns require us to treat a defendant’s claim that a judge ignored an apparent conflict differently from other conflict of interest claims. The majority, however, treats all conflict claims the same, unless there is an objection. Under the majority’s approach a defendant can be required to take a lawyer with divided loyalties so long as he does a tolerable job, and the defendant does not lodge a timely objection. The Sixth Amendment requires more. A criminal defendant has the right from the outset of proceedings to a lawyer who is free of conflicts. Yet the majority would impose no added consequence when a trial judge knowingly allows an unwitting defendant to proceed with a lawyer who has an apparent conflict. In this situation, the majority holds, the defendant’s burden is the same as when the conflict is not known to the court until after a guilty verdict. In both cases, the defendant must show both an actual conflict and adverse effect, according to the majority. But under Sullivan and Wood, when the conflict is obvious and the trial judge ignores his duty (and opportunity) to see that the Sixth Amendment right is protected, the Supreme Court lessens the defendant’s burden. He need only show that his lawyer had an actual conflict. This lower burden on defendants encourages trial courts to pay strict attention to fundamental rights, and it confirms that our system is dedicated to ensuring fairness. The majority opinion, which goes against the decisions of the Supreme Court, does nothing to encourage trial courts to take the initiative in policing obvious conflicts of interest. That is unfortunate.
III.
The state judge faced (or actually created) an apparent conflict when she appointed Bryan Saunders to represent Walter Mickens in his capital murder case. The judge should have investigated the conflict problem at once and resolved it before it was too late. Instead, Mickens was put on trial and sentenced to death with a lawyer who labored under an actual conflict of interest. See Mickens v. Taylor, 227 F.3d 203, 213-17 (4th Cir.2000), vacated & reh’g granted, Oct. 23, 2000 (explaining why Mickens’s lawyer had an actual conflict). Mickens must answer to the charge of capital murder, but he should answer through a lawyer whose representation is not clouded by a conflict. Because Mick-ens’s Sixth Amendment right to conflict-free counsel was violated, I would award him a writ of habeas corpus unless the Commonwealth of Virginia grants him a new trial.
I respectfully dissent, and Judge Motz and Judge King join with me.
In Foxworth the Fifth Circuit vacated a conviction because the trial court failed to inquire into an apparent conflict, even though the record did not reflect an objection. See 516 F.2d at 1080 n. 17. Significantly, in these circumstances, the court held that a defendant need only show an actual conflict and need not show adverse effect. See id. at 1077 n. 7.
In Medel the Fifth Circuit said, "We ... reject [the defendants'] contention that the trial court was under an affirmative duty to inquire into the possibility of a conflict of interest. Defense counsel ... never indicated to the trial court that a conflict might exist. Nor do we find anything in the record that should have alerted the Court to such a possibility." 592 F.2d at 1312-13 (emphasis added).