behalf of rodney cooper at this time i'd like to reserve three minutes for rebuttal and mr cooper appeals his conviction of felon in possession of a firearm on the basis that he has been denied his sixth amendment right to conflict free counsel the record contains three unrebutted allegations about events that occurred before trial first mr cooper threatened to seriously harm his appointed counsel attorney one second the hunt law firm obtained a restraining order against mr cooper and third mr cooper's mother filed an ethical grievance against the hunt law firm the government does not dispute that these allegations are in the record the trial court did not conduct an evidentiary hearing and made no findings as to any conflict the only issue for this court is whether the record supports an actual or plausible conflict of interest that adversely affected attorney hans performance mr cooper requests that this co a plausible conflict and order an evidentiary hearing underwood versus ga the record would also support a finding of an actual conflict or ineffective assistance as a threshold matter direct review of mr cooper's claims is courts routinely address conflict claims on direct appeal and the sixth circuit is no exception to that rule the government cites the judicial preference for deferring traditional ineffective assistance cl but that rule has no application in conflict cases the very basis for the judicial preference is the prejudice requirement in strickland and there is no prejudice requirement in a conflict case well lots a little over broad in that there's no maybe there's a presumption of prejudice in the case of representing conflicting interests like representing co defendants but that's not what you've got here the standard is less it's less fact intensive it's not prejudiced it's adverse effect there does there is a showing that's required we're not arguing that it's a presumption of prejudice but often in conflict cases the record is adequately developed to determine whether a plausible or actual conflict exists i have to assess what bothers me a little about this case so that all three of the alleged conflicts occur your client knew this before mr hunt was engaged in the representation this wasn't something that hearing june twenty seventh of two thousand and thirteen and their client says well brian when you appointed him he's talking to the judge to represent me in this case here i wrote him a letter i said do you not think the court needs to know about this incident he came to talk to me i said if you don't think that there's going to be a problem you know we can go forward with this here card saying of thought oh it's ok we can go for it well now he's saying oh no no no it's a conflict of interest because i lost and it's all your fault well something strikes me is it's not obvious to me that there isn't fact a conflict of interest there it's true that these were events that occurred before trial and it's also true that mr cooper approached attorney hunt before trial and asked him about if this conflict was a problem he's not an attorney he doesn't understand conflicts of interest and certainly without the advice of counsel couldn't evaluate what the potential risks were at that scene hearing on june twenty seventh attorney hans admits that this occurred that mr cooper approached him before trial about the conflict and even after that mr cooper said he changed his mind he really wanted  to bring this conflict to the court's attention and was under the impression that mr hunt had brought the conflict to the court's attention but he did not in at the hearing on the twenty seventh p j d six thirty three attorney hunt admits that it was his failure for bringing for not bringing the conflict to the court's attention sooner and it's significant that attorney hunt does not deny that these allegations are untrue he's standing there for the duration of the hearing and if there were if these allegations were false it would have been very simple to explain to the court mr cooper has the facts wrong and there were no threats of violence there was no restraining order and there was no ethical grievance but he didn't do that and through his silence we have effectively an adoptive admission under federal rule that and no one and then we also has have his affirmative admissions that he was approached before trial and that she failed to inform the trial court for conflicts of interest it's important that the duty is on counsel to bring conflicts of interest to the court and it is the duty of the trial court to inquire if there is a plausible conflict presented spontaneous yes if it has reason to believe that a conflict exists and so in the kilpatrick case for example a judge admins raised the issue of the possible conflict herself different for the sentencing hearing is that the necessary inquiry no your honor i cannot it's not because the court did actually not make a finding as to a conflict the court s counsel going forward but mr cooper's claim was that his attorney had been intentionally ineffective during his trial and that he wanted an opportunity to prove that that was the case and although his pro se motion was titled motion for new counsel looking beyond the title of the motion which that trial court should have done given this pro s words not represent divided loyalty representing code well this court at least two occasions has extended sullivan and would beyond the traditional dual representation situation in moscow versus united states this court applied sullivan to a successive representation case and then in united states versus taylor this court applied would where counsel was investigated regarding the disappearance of records  and so we do recognize conflicts exist aside from representing codefendant but were divided loyalty in this case the divided loyalty is that mr that attorney  hunt has or at least had a belief that his client was dangerous and violent and then he later represented him in a defense capacity and that there is a personal conflict there that is proper really the closest cases on this point are gray versus a stele out of the fifth circuit their counsel had previously sued a defendant for theft and then later represented him in a murder trial the court there held that the adversarial past created a conflict of interest and that it was it did not matter that the two cases were completely unrelated and then in united states versus zag in hagen the seventh circuit addressed a situation where counsel had appeared twenty years earlier to recommend the length of a sentence and their counsel did not even remember the prior representation but when the prior representation was brought to his attention he failed to inform the trial court of the problem there the seventh circuit ordered that an evidentiary hearing and was appropriate and so  is what you the court would be depriving mr cooper of if it deferred his claims for collateral review where the right to counsel is not constitutionally guaranteed and he should not have to use up his  one b s petition on an issue that is really not his responsibility to bring to the court again conflicts are unique in that it is incumbent on counsel to raise these issues and on the court to investigate those issues and it would be paralyzing him to not address his claims and direct review when he has been acting early and often throughout the course of the proceedings  significantly he mr cooper through his tenacity was able to remove the armed criminal career criminal status but but for his own efforts he would have been subject to at least another five years under there with all his expertise he could have certainly brought to the court proceedings that i got a conflict of interest with mr hahn and he did he did in his knob till after he was convicted just at the point were to be servants not during his trial well i think that this you know the sullivan does contemplate a post conviction form of relief where a conflict of interest adversely can he can include all of whose claims why is he prejudiced and if among what other claims he wants to bring he includes  hearing were ordered i think it would be beyond the court's discretion not to take discovery and that's another reason why i think he'd be penalized if his claim was deferred for collateral cynthia davidson for the united states may it please the court defendant would have this court bully that after years of being a diligent party in his own defense and following pro se motion after proceeding motion in his own defense including asking for a new attorney at least three times falling pro se motions for discovery that and that he actually physically threatened harm on his attorney mr bryant h that he depended on his attorney mr bryant to bring this conflict before the court this is simply not the case in fact the defendant waited almost three months after he was convicted proud jury to bring this to the attention of the court and not related to the council immediately well according to the unsealed part of the transcript mr hunt stated and i want to bring this up to the court it's page id number six eighty six on the february nineteenth two thousand and fifteen hearing mr hunt said in open court that he brought to the attention that there was a conflict between one of his family members and the other attorney his office and mr holmes specifically other attorney his father his father two people whom the office yes your honor his father there was a conflict  i asked him were you involved in that matter and all at all and he said no and so i informed him it shouldn't be a conflict that is what mr hunt says and he says later in that a convenient conflict where mr cooper alleges that he actively threatened to beat bryan hunt up and he doesn't bring this to mr hunt's there's absolutely no proof that he brought this to brian h attention prior to the trial and you can see from the transcript that mr bryan hunt is quite honestly stunned about these allegations and rebutted he as far as i know because the hearing was sealed i was asked to step out he has absolutely no idea what mr cooper is shocking about and there is no evidence from this record from which this court can determine that there united states was excluded from this hearing the motion was not term to motion for the court to determine whether there be a conflict of interest that if it was against seeking a new attorney and he brought these allegations during that hearing that the defend the magistrate court made find no findings based on his allegations and gave him a new attorney because many of his allegations are too big that his counsel was ineffective during trial so in order to clearly i mean that's the argument that there's a conflict of interest and you didn't tell the court because it was either embarrassing to you or you didn't want it known publicly because it concerning to the court below that that he would appoint a new counsel for the sentencing hearing why doesn't that impact or or cause the court to be required to inquire further regarding the impact of the sequelae on the actual trial as opposed to just giving him a new coun concerned about the alleged and it fact of assistant to i mean i'm sorry the alleged conflict i think he was more concerned about the defendant going forward with sentencing when he was already voicing all of these complaints about  to was ineffective for not bringing it up right so we're back to the signed spot was there a duty for the court to have actually examined this issue the conflict of interest believe that this was an automatic reversal and and defend it only brings this up seeking a new counsel and so then the court granted his motion and gave him new counsel and then it was not further brought up were guarding this alleged conflict and so i don't believe that there was any duty by the district court to make a finding when the issue was never before it the issue if we found that there was in fact  then there would be if there would be a room i and if that the court also must find well once there's a finding that there is a conflict which i don't believe that the court can do from this record because there's absolutely no evidence of it other than the run the allegations of the defendant and there is certainly evidence that could have been presented person mobley there is a record of a restraining order that but your honor in essence the defendant's main concerns are the ineffective assistance of counsel and this court routinely handles cases like this where there is nothing on the record to support  the government seeks to deprive them of rights council no one in the twenty to fifty five is has a right to counsel and so we're not seeking to deprive him for a right that isn't a routine right but in practiced in the eastern district of tennessee whenever a defendant whenever the court determines that in everyday injury hearing is needed then the eastern district of tennessee routinely appoints counsel for that defendant so in essence if this claim was litigated and what we believe would be the proper venue twenty two fifty five he would have counsel to help him with any of her every da ruling if the district court determined that that was needed but what your policy argument for why this should be referred to a twenty two fifty five as opposed to letting it be remanded for an evidentiary hearing on direct appeal policy other than the fact that there is nothing in the record which would with support re man the defendant had no proof whatsoever but the court certainly could hold the appeal in abeyance and  for findings of fact if the court determined that this is necessary the policy argument is simply is that there is already a mechanism set up in the law for this to be handled by a twenty to fifty five and it should be handed in the district court and that all of his comings are at that these were ineffective assistance of counsel which i don't think he can ever show because he can't first of all show that the i would say no he brought this and this and aside for the first time really on an appeal he he could have brought this up with the minute that mr hunt was  appointed to him he certainly knew how to bring things before the court he had felt motion after motion but he waited and cording to whom he thought punted exactly according to him he was in the him he brought it up to the court and the court ruled that there was no conflict he alleges as i understand it that mr hunt didn't bring any conflict before the court and knew the defendant he said there in the trial and he heard the entire trial and waited until almost three months later to bring at some alleged conflict after he was and happy with the results of the hearing and if you look at the transcript of the actual trial there is absolutely no indication that mr bryant was an ineffective assistance of counsel he argued the only thing which could have been argued in the end the best argument in this case which was that no one saw the defendant take the gun that was the only defense and he flushed that out to the best of his ability the defendant's arguments about how any reasonable attorney would have moved to suppress evidence was put on that it was a looping today and that it was only kept if a copy was made and so during direct evidence i put on evidence that they whatever was deemed by the video employee to be relevant and then there was no allegation no one i asked them to maintain all of the future and previous videotape it was asked for over a year after the incident he had three attorneys none of which have even raised this issue and simply wasn't an issue  if there aren't any other questions thank you thank you just a few points on rebuttal the government refers to a statement at a hearing that attorney is saying that mr cooper has no idea what he's talking about i think it's important to read that statement in context this is a quote from page id six twenty eight he has no idea what he's talking about you know i've told mr cooper that i don't see how that's a conflict at this point at this stage we've had your trial unfortunately you know you were found guilty by a regardless of how a jury has found a defendant i'd like to also pick up on a few of the adverse effects that resulted from the conflict of interest that i did not a touch upon earlier the first one is the jail call any reasonable attorney would have objected to the jail call in this jail call mr cooper states all of the bad i don't is coming back to haunt me and he also talks about other items but not a firearm that he took  display case the jury was free to draw inferences that are not permitted and more prejudicial than probative the jury is thinking he's a bad guy and he stole something so therefore he must be guilty of stealing this fight whether you stole stored or postal court had a very general limiting instruction however there was no specific limiting instruction offered with respect to this piece of evidence and i believe that that would have been appropriate had attorney hind merely requested additionally the surveillance footage this was spliced by the manager so i think we have a chain of custody problem also the rest of the footage was not maintained and that is especially ation problem we've got the manager presumably who whenever someone standing over that this is not particular this was not subsequent to be charging of your client it was already following following the law correct yes i believe it was done very shortly after the robbery i see that my time has expired may briefly answer your question the issue and it's not that we're pointing blame at the at morning right and what we've got a lay opinion of the store manager about what is relevant and what he sees in the video and so we have him saying that is where i started the video because it is the only relevant thing that i found on the d v r we've also got him saying mr cooper was the only one that i saw on that video that had leaned far enough over the counter to have done anything that's a lay person providing his determination the consequence of which is a limitation on evidence that is then later used and mr cooper's trial there should have been an objection and that was not done here and in the jail call and the surveillance footage those are both instances in which attorney performed efficiently thank you you thank