dissenting:
I respectfully dissent. Robert Wells was denied effective assistance of counsel in two respects. His defense attorney, Joseph Abraham, labored under an actual conflict of interest. Abraham’s legal fees were paid by Daniel Jones, one of Wells’s indicted co-conspirators,1 and the record establishes that this fee arrangement adversely affected Abraham’s representation. Second, Abraham was absolutely unwilling to negotiate with the government on behalf of Wells even though it could have materially decreased Wells’ sentence.
I.
“A criminal defendant’s Sixth Amendment right to counsel includes the right to be represented by an attorney with undivided loyalty.” Lockhart v. Terhune, 250 F.3d 1223, 1226 (9th Cir.2001). Unlike other Sixth Amendment claims, a claim that a lawyer operated under an actual conflict of interest does not require the petitioner to prove that his counsel’s deficient performance prejudiced his defense. Id. (quoting Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir.2000)); see also United States v. Rodrigues, 347 F.3d 8Í8, 823 (9th Cir.2003). It is enough to prove the existence of an actual conflict — a conflict that “affected counsel’s performance.” Mickens v. Taylor, 535 U.S. 162, 171, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002).
II.
Wells meets his burden with evidence that the potential conflict created by Abraham’s fee arrangement actually affected Abraham’s representation in two ways. First, Abraham asked Wells to sign a declaration that helped Jones, but that could have prejudiced Wells’s own defense. Sec*737ond, Abraham flatly refused to negotiate with the government on Wells’s behalf — a refusal that could.only have benefitted Jones.
A.
On July 8, 1991, shortly after the criminal trial in this case had begun, Abraham presented Wells with a prepared declaration that Abraham intended to file in support of Jones’s motion to sever his trial from that of his co-defendants. Wells signed the declaration, apparently after a brief discussion with Abraham. The declaration stated that Wells had decided not to testify at his own trial, but that if Jones were given a separate trial, Wells would testify at that trial that in March 1985 Jones withdrew “from all activity involving the allegations in the Indictment” and “abandoned all economic and financial interest in our ventures.”
There is no evidence in the record that Abraham ever discussed with Wells the potentially inculpatory nature of this declaration. For example, if one assumes, as co-conspirator Don Wogamon testified at trial, that Wells and Jones conspired to manufacture and distribute methamphetamine from 1988 through the early part of 1985, then Wells’s declaration immediately takes on an incriminating cast. It admits Wells’s participation in what Wogamon described, in detail, as an illicit, business venture centered around the manufacture and distribution of methamphetamine. Contrary to the majority, the language that Wells, if called to testify in a separate trial of Jones would testify that Mr. Jones “manifested a clear intention to withdraw from all activity involving the allegations in the Indictment in this case” is incriminating. It does not limit the “activity” to the gold mine operation as the majority suggests.
At the evidentiary hearing on Wells’s § 2255 motion, Wells’s habeas counsel asked Abraham to explain what possible benefit could have accrued to Wells as a result of the July 8, 1991 declaration. Abraham could not point to any benefit. Instead, he explained that he presented the declaration to Wells because it provided support for the severance motion of Wells’s friend Jones — the co-conspirator and co-defendant, who Abraham thought was paying his legal fees.
B.
Abraham and Wells first met in 1991, after Wells had been arrested on the charges at issue in this case. At their first meeting, Abraham made it clear that his offer of representation was limited. When Wells asked about his “option[s]” other than trial, Abraham said: “[I] don’t represent snitches.”
A policy like Abraham’s raises serious ethical questions. See United States v. Lopez, 4 F.3d 1455, 1464-66 (9th Cir.1993) (B. Fletcher, J., joined by T.G. Nelson, J., concurring); see also ABA Model Rule of Professional Conduct 1.2(a) (“[A] lawyer shall abide by a client’s decisions concerning the objectives of representation.... In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.”); id. at 1.2(c) (“A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent”) (emphasis added). The plea bargaining process is so important in our criminal justice system that a defense lawyer who refuses to negotiate with the government will often fail to provide the effective assistance required by the Sixth Amendment. See Turner v. Calderon, 281 F.3d 851, 879 (9th Cir.2002) *738(explaining that negotiations with the government are a “critical stage” of a prosecution for Sixth Amendment purposes). The type of truncated representation offered by Abraham certainly falls far short of the ideal attorney-client relationship expounded in Strickland. See Lopez, 4 F.3d at 1464 (“[T]he model of a successful attorney-client relationship, as expounded in Strickland v. Washington, is one in which counsel’s actions are based on informed strategic choices made by the defendant and on information supplied by the defendant.”) (internal quotation marks and alterations omitted).
Notwithstanding these ethical problems with Abraham’s approach, Abraham stuck to his policy throughout Wells’s trial, even after the jury convicted Wells but was unable to reach a verdict as to Jones on several counts. The majority suggests that Abraham may have decided not to pursue negotiations with the government because Wells had no useful information to give — not because Abraham was affected by a conflict of interest.2 This view of the record is flawed in two respects.
First, the majority’s view assumes that Jones had a valid statute of limitations defense, and that Wells could not have implicated Jones in any illegal acts within the limitations period. However, Jones was charged in at least one count for which Wells could have provided critical testimony and for which Jones did not have an obvious statute of limitations defense. The “Butte indictment” charged Jones with manufacturing and distributing methamphetamine on March 11, 1985. Because that indictment was filed on February 23, 1990, the charged violation fell within the five-year limitations period.
Second, Abraham testified at the evi-dentiary hearing on Wells’s § 2255 motion that he and Wells never discussed whether Wells could provide assistance to the government. It is difficult to imagine that a defense attorney unaffected by a conflict of interest would not at least have asked Wells if he could provide information useful to the government, particularly when Wells had already been convicted and Jones faced a second trial on the hung-jury counts. Compelling trial testimony established that Jones and Wells had manufactured methamphetamine together for several years in the early 1980s. Even if Wells could not have provided the government with information about Jones’s involvement in the March 11, 1985 distribution, or about Jones’s involvement in criminal acts within five years of the “Helena indictment,” Wells clearly had a wealth of incriminating background information about Jones that he could have provided to the government. Yet Abraham failed to broach the subject of cooperation with the government. This unexplained failure could have benefitted only Jones.3
The most logical explanation for Abraham’s conduct is that his representation of Wells was adversely affected by a conflict *739of interest. This is the only explanation, in fact, that accords with Jones’s conduct. Jones agreed to pay for Wells’s criminal defense even though Jones and Wells had had a falling out in 1985 and had not spoken before the 1991 trial. It strains credulity to assume that Jones volunteered to pay Abraham’s significant legal fees4 without at least expecting loyalty in return.
III.
The July 8, 1991 declaration and Abraham’s refusal to negotiate with the government, viewed in light of Jones’s unexplained willingness to pay for Wells’s defense, lead me to conclude that Abraham’s representation was adversely affected by an actual conflict of interest. I would grant the writ.
. The majority suggests that although Jones advanced the money, the money. actually might have been Wells's. What is critical, however, is that Abraham thought its source was Jones.
. Similarly, the majority implies that the government had no interest in obtaining information from Wells about Jones. I find this specious — Jones’ first jury was hung. His second acquitted. The government needed help and Wells was the obvious source.
. Abraham suggested at the evidentiary hearing on Wells's § 2255 motion that he simply preferred trials to plea negotiations: “Whenever I get ready to be involved in a case, I candidly tell the person that I'm about to be involved with that if he wants to be a government witness he doesn't need me to represent him.” Even if true, this preference does not explain Abraham's failure to raise the issue of government cooperation after Wells was convicted. At that point, Abraham had already had his chance to take the case to trial. Abraham had nothing to lose and Wells had everything to gain.
. Wells testified that Abraham was paid $100,000 for his trial representation and $30,000 for his appellate work. Abraham testified that he probably received $60,000 for the trial and $25,000 for his appellate work. At a minimum Jones paid $85,000 for Wells's criminal defense.