dissenting.
Kevin Hall pleaded guilty to a drug conspiracy. Now he wants collateral relief on the ground that his lawyer formerly represented Anthony Gignac, who might have been called as a witness had a trial occurred, and therefore could not represent him adequately. The conclusion that these events call into question the validity of the plea is incompatible with Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), and would be hard to justify even under pre-Mickens decisions.
After Hall was indicted, the Federal Defender’s office for the Southern District of Illinois assigned Lawrence Fleming to represent him. Fleming previously had furnished legal assistance to Gignac, and given the posture of these proceedings I must assume that Gignac might have been a witness had a trial been held — though the United States Attorney denies that Gignac would have been called, and he should know. (The prosecutor says that Gignac knows nothing material to the charge against Hall.) Hall’s theory is that Fleming strong-armed him to plead guilty in order to avoid the problem that would ensue if
Gignac took the stand. This is implausible on its own terms. Why should Fleming have cared? The Federal Defender in the Southern District has five other lawyers on the staff. If the case had gone to trial, and the prosecutor had shown any inclination to call Gignac, Fleming could have turned the representation over to one of his colleagues. Hall proceeds as if Fleming had received a hefty fee that he feared having to return if required to withdraw. See Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990) (“The pragmatic pressure on counsel in cases such as these is purely financial; the lawyer does not want to lose a client.”). Yet Fleming, as a public employee, had no financial stake and thus no reason other than his client’s best interests to urge Hall to plead guilty.
Hall received a sentence of 37 months’ imprisonment, the bottom of the guideline range (itself reduced by the acceptance of responsibility that Hall now wants to repudiate). Five defendants were charged in the indictment. The others' — all represented by conflict-free counsel — likewise pleaded guilty. Two of these four entered pleas in advance of Hall’s and were available to testify against him; the remaining two pleaded guilty at the same time Hall did. If the four defendants with non-conflicted counsel had gone to trial (better, had gone to trial and won), while only Hall had capitulated, one might see a point; but given what actually happened Hall’s plea is best seen as a good deal in light of mounting evidence.†
*977My colleagues say, however, that a conflict of interest not only excuses any need to show prejudice to the defense — in other words, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”, Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) — but also eliminates any need to establish adverse effect. They rely on Enoch v. Gramley, 70 F.3d 1490 (7th Cir.1995), and Stoia v. United States, 22 F.3d 766 (7th Cir.1994), which read Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), to require collateral relief whenever counsel had a conflict of interest that created a potential for an effect on the conduct of the defense.
Mickens rejects that understanding of Sullivan and its predecessor Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). The Court concluded in Mickens that those decisions deal with situations in which the trial judge should have inquired into the conflict (as when one lawyer represents two defendants with inconsistent positions) or the judge rebuffs a protest by a lawyer assigned to represent multiple defendants. When no inquiry was required at trial, Mickens holds, then unless the petitioner establishes an adverse effect from the conflict no collateral relief is appropriate. What my colleagues have to say about Mickens is this:
A showing of a conflict does not automatically entitle a petitioner to reversal. The Supreme Court in Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), requires that a petitioner also show adverse effect. However, we find no language in Mickens that requires a petitioner to engage in speculation pointing to an actual adverse effect. A petitioner demonstrates an adverse effect by showing that there is a reasonable likelihood that his counsel’s performance would have been different had there been no conflict of interest. Stoia, 22 F.3d at 771.
371 F.3d at 974 (emphasis in original). By saying that the need to show adverse effect does not entail a need to show “actual adverse effect” — and adding that a “reasonable likelihood” of any effect on counsel’s performance will do — my colleagues depart from Mickens. Any conflict creates (a reasonable probability of) some effect. So does the fact that the lawyer caught a cold. That is not a sensible understanding of the sixth amendment’s right to the assistance of counsel. Effects are ubiquitous. A koala’s choice among tasty eucalyptus leaves in Australia could change the weather in Alaska. (This is the butterfly effect of chaos theory.) But we need to ask whether a given effect was both likely and injurious. Only someone who lacks “counsel” within the meaning of the Constitution is entitled to, relief. When the Justices spoke of “adverse effect” they meant a real rather than a hypothetical adverse effect (or, as my colleagues would have it, no adverse effect at all). That’s what the debate was about.
The sixth circuit concluded that Mickens failed to show an adverse effect from the conflict; the Supreme Court held that this was enough to warrant the denial of the petition when there had been no reason for the trial court to make an inquiry at the time. The reason inquiry was unnecessary was that counsel did not represent multiple defendants. Instead he had represented Mickens’s victim. So there was a potential for a problem if the trial led toward information that counsel held in confidence from the former representation. But there was no reason for the judge to know this, and when Mickens failed to establish a concrete adverse effect he lost. Exactly the same may be said about Hall: the representation was sequential, there was *978no occasion for the judge to inquire, and so “adverse effect” must be shown.
Four Justices dissented. Two of them (Ginsburg and Breyer) did so principally because Mickens was a capital case, and they favor a special standard for such prosecutions. Justice Souter stated in dissent that he supports the “adverse effect” test for situations in which the trial judge bears no fault, and his opinion contemplates a demonstrable adverse effect. He wrote that “a defendant can fairly be saddled with the characteristically difficult burden of proving adverse effects of conflicted decisions after the fact when the judicial system was not to blame in tolerating the risk of conflict” (535 U.S. at 203, 122 S.Ct. 1237) — -and to say that a defendant must prove something is to say that the adverse effect must be realized (= actual) rather than potential. Only Justice Stevens thought that conflict plus any effect on performance should be enough. See 535 U.S. at 186-87, 122 S.Ct. 1237. He suggested, however, that proof of adverse effect should be required when the trial judge lacked knowledge of the conflict. Id. at 187 & n. 12, 122 S.Ct. 1237. Why should this circuit adhere to a position that has the support of one Justice at best?
One more observation about “actual” adverse effect. Although the phrase “actual adverse effect” does not appear in Mick-ens, the word does appear in Sullivan (in a passage quoted by the Mickens majority, 535 U.S. at 171, 122 S.Ct. 1237). In Sullivan the Court concluded that it would be enough to prove that the conflict “actually affected the adequacy of [the] representation”. 446 U.S. at 349-50, 100 S.Ct. 1708. That showing would suffice for dual-representation situations in lieu of Strickland prejudice. In the seventh circuit, however, no “actual” effect on counsel’s adequacy need be shown. My colleagues require “a reasonable likelihood that ... counsel’s performance would have been different” but not that this “difference” undermined the defense or had any other adverse consequence. To equate “difference” with “adverse effect” is to elevate pre-Mickens decisions of this circuit over recent instructions from our superiors.
Part III of Mickens, 535 U.S. at 174-76, 122 S.Ct. 1237, observes that courts of appeals have extended Sullivan beyond simultaneous-representation cases to conflicts of all sorts. The Justices remarked that they had followed this approach ar-guendo in Mickens (a sequential-representation situation), and applied the “adverse effect” standard rather than insisting on proof of “prejudice,” because the question presented by the petition was so limited. But Mickens shows that the Court is skeptical about this extension and would welcome an opportunity to decide whether Holloway and Sullivan apply beyond simultaneous-representation situations. My colleagues call Part III of Mickens dictum, and technically it is, but together with the rest of the opinion it tells us that a majority of the Justices believe that petitioners should be required to prove real adverse effects if not Strickland “prejudice” in most conflict situations. Instead of fobbing Part III off as dicta to be ignored, we should use the discussion to illuminate the rest of the opinion. It shows that the Court’s references to “adverse effect” must be taken seriously rather than dismissed because the Court did not prepend the word “actual.” It ill behooves a court of appeals to say: “We see what you are driving at, but until you use the magic word we shall do the opposite.”
My colleagues quote from a letter that Fleming wrote to the prosecutor suggesting that it was going to be difficult to convince Hall to plead guilty and that it would require "a continuing sales job”. I do not see how this tends to establish any deficiency in Fleming's work. A common negotiating tactic is for an agent to assert that the principal is tough and ready to disdain any ordinary offer. Fleming used this tactic when noting that Hall was already in prison and not likely to accept anything but the best deal he could get. Anyone who has purchased a car knows that the salesman always confers with his boss and says something like, "I’ll try to convince my boss to accept this, but you're getting a pretty good deal and he probably won't be happy with me.” Fleming adopted the same approach, which suggests that he was trying to extract the best possible deal for Hall.