* Pursuant to Local Rule 47.5, the Court has deter mined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-40697

cons. w/ No. 95-40784

___________________

DAVIS LOSADA,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

________________________________________________

Appeal from the United States District Court for the

Southern District of Texas

(87-CV-141)

_________________________________________________

August 14, 1996

Before KING, GARWOOD and WIENER, Circuit Judges. *

GARWOOD, Circuit Judge:

Petitioner-appellant Davis Losada (Losada) appeals the

district court’s dismissal of his petition for writ of habeas

corpus challenging his Texas capital murder conviction and death

sentence. Losada contends that: (1) the district court failed to

hold an evidentiary hearing on his ineffectiv e assistance of

counsel claim; (2) the state trial court failed in its du ty to2

inquire into the possibility of a conflict of interest; (3) he

received ineffective assistance of counsel because his attorney was

burdened by an impermissible conflict of interest; and (4) the

district court’s findings regarding his attorney’s crossexamination of the state’s primary witness are clearly erroneous.

We affirm.

Facts and Proceedings Below

On March 27, 1985, Losada was indicted for capital murder,

committing murder in the course of aggravated sexual assault, in

connection with the rape and beating death of Olga Lydia Perales

(Perales) in Cameron County, Texas. Losada was represented at

trial by court-appointed attorney Jose Luis Peña (Peña).

The evidence adduced at trial concerning Perales’ death and

the testimony of the state’s principal witness, Rafael Leyva, Jr.

(Leyva), was accurately summarized by the district court below as

follows:

“Testimony at trial showed that the body of fifteen year

o ld Olga Lydia Perales was found on the morn ing of

December 24, 1984, in a brushy area near San Benito.

Perales had been raped and then beaten and stabbed. A

pathologist testified that the cause of death was several

severe blows to the head which caused a skull fracture.

In addition Perales had been stabbed two times in the

chest but the pathologist testified that since there was

ver y little internal bleeding from these wounds, the

victim was probably already dead when stabbed.

. . . .

The state’s principal witness was Rafael Leyva, Jr.

Leyva testified that on the night of the murder he had

been driving around, drinking and smoking marijuana with3

Joe Cardenas, Jesse Romero and [L osada]. They were in

Joe Cardenas’ car. The group eventually ended up at Ray

Amaya’s house. When they got to Amaya’s house, they saw

him coming out of a shed in his backyard. Amaya told

them that he had Olga Lydia Perales in the shed and they

were having sex. After talking with Amaya for a few

minutes, someone said something about taking Perales

home. Amaya called Olga Lydia out of the shed. She came

out and spoke with Amaya and then she got into Cardenas’

car. According to Leyva, he was sitting in the back seat

along with [Losada]. Joe Cardenas was in the driver’s

seat beside Romero and Olga Lydia was sitting next to the

passenger door in the front seat. Before they started

driving away Jesse Romero pushed Olga Lydia’s head down

between her knees and told her not to make any noise.

When Olga Lydia resisted, Jesse Romero pulled out a

knife , held it to her neck and told her to shut up.

Cardenas drove out into the country and stopped the car.

[Losada] remained in the back seat and ordered Olga Lydia

to climb in the back seat. Olga Lydia’s clothing was

removed and, although Olga Lydia pleaded with the quartet

to let her go, she was repeatedly raped. Initially she

was raped by [Losada]. Then she was forced to commit

oral sodomy on [Losada] while first Jesse Romero and then

Leyva had anal intercourse with her. Although Cardenas

did not have intercourse with Olga Lydia, Leyva testified

that he saw Cardenas sticking some object insid e Olga

Lydia while she was performing oral sodomy on [Losada].

When everyone else was finished, [Los ada] raped Olga

Lydi a two more times, once in the back seat of the car

and once on the top of the trunk lid. After the group

had finished it was decided that they had to do something

to keep Olga Lydia from going to the police. Cardenas

pulled a pipe out of the car and handed it to Leyva.

Everyone told Leyva to hit Olga Lydia with it as they had

to make sure she did not tell anyone what had happened.

Leyva testified that he did not want to hit Olga Lydia so

he asked her if she would promise not to tell anyone.

She immediately did so. He told the others that she had

promised not to tell anyone but they all insisted that he

hit her. Leyva argued with the others for several

minutes while Olga Lydia pleaded that she would not tell

a nyone. Leyva testified that suddenly his mind went

blank and he took the pipe and hit Olga Lydia on the

right side of the head. Immediately thereafter Jesse

Romero grabbed the pipe and began striking Olga Lydia.

The pathologist testified that she was probably struck 20

to 30 times about the head and shoulder. Leyva testified

that when the blood began squirting out of Olga Lydia’s4

head, he turned away but he could still hear the others

beating her with the pipe. After the beating stopped,

[Losada] stabbed her once in the chest. Leyva and Jesse

Romero drug the body into the brush and Leyva stabbed her

one more time in the chest. The group then got back in

Cardenas’ car and left the area. During the trip back to

San Benito, they threw the knives out of the car window

and stopped on the bridge and threw the victim’s clothing

into a creek.”

At trial, the district attorney elicited additional testimony

from Leyva on direct examination indicating that his attorney

(Barrera) had negotiated a plea agreement in return for his

testimony allowing Leyva to plead guilty to a charge of sexual

assault carrying a maximumsentence of twenty years on the

condition that he t estify truthfully at Losada’s trial. The

district atto rney further confronted Leyva with the fact that in

his initial statement to the authorities he had indicated that he

had been involved only in the rap e, but had not confessed to his

role in either beating or stabbing Perales. Leyva testified that

he had not told the investigator these things in his initial

statement because he “wanted to protect [himself].” Finally, the

district attorney brought out Leyva’s prior cri minal history of

runaways and burglaries as a juvenile.

On cross-examination, Peña asked only the following questions

of Leyva:

“Q: Mr. L eyva, I was reading your statement here

and it says here that at the time of the rape

you stated that you did not know who the girl

was at that time; is that correct?

A: Sir, I didn’t hear you.

. . . . Q: BY MR. Peña: Mr . Leyva, I was reading one of5 the paragraphs in your confession, your

statement, and it says here somebody was

raping the gi rl and that you, at this time,

you didn’t know who the girl was; is that

correct?

A: Yes, Sir.

Q: You didn’t know who she was?

A: No, Sir.”

The jury found Losada guilty of the capital offense, and

following a punishment hearing and the submission of special issues

to the jury, Losada’s punishment was assessed at death. Losada’s

conviction and sentence were affirmed on direct appeal by the Texas

Court of Criminal Appeals. Losada v. State , 721 S.W.2d 305 (Tex.

Crim. App. 1986). Losada did not seek c ertiorari review by the

United States Supreme Court. On February 5, 1987, the trial court

set Losada’s execution for March 12, 1987. On March 2, 1987, Peña

filed a state habeas petition on Losada’s behalf. The trial court

recommended that relief be denied without holding an evidentiary

hearing. The Texas Court of Criminal Appeals issued a stay of

execution and ordered that an evidentiary hearing be held on the

claim that a court security officer who also served as a witness in

the trial had been in impermissible contact with the jury in

violation of Turner v. Louisiana , 85 S.Ct. 546 (1965). Following

an evidentiary hearing by the trial court, the Texas Court of

Criminal Appeals denied Losada’s writ without written order. E x

Parte Losada , No. 16,892-01 (Tex. Crim. App. 1987).

Losada’s execution was then scheduled for July 6, 1987. On

July 1, 1987, Peña filed a habeas petition on Losada’s behalf in6

the United States District Co urt for the Southern District of

Texas, Brownsville Division, and applied for a stay of execution.

The district court granted a stay of execution, allowed Losada to

file an amended petition, and appointed new counsel. Losada’s

amended petition was filed by his new counsel on October 16, 1987.

Respondent moved to dismiss for failure to exhaust state remedies

and the district court granted the motion, dismissing Losada’s

petition and vacating the stay of execution.

Losada’s execution date was again set for March 22, 1989. On

March 10, 1989, Losada, through his new counsel, filed a second

state habeas petiti on. The trial court recommended that the

petition be denied, and the Texas Court of Criminal Appeals denied

relief by written order entered March 17, 1989, stating that “none

of the allegations made by applicant in his current writ

application have any merit.” E x Parte Losada

, No. 16, 892-02 (Tex.

Crim. App. 1989).

On March 20, 1989, Losada, through his new counsel, filed a

second federal habeas petition and an application for stay of

execution. In this habeas petition, Losada asserted, i nter alia

,

t hat he received ineffective assistance of counsel because hi s

trial attorney had briefly represented Leyva, the state’s primary

witness, prior to Leyva’s arraignment. Appended to Losada’s second

federal petition was an affidavit by Peña which states:

“On or about April 3, 1985, I received notice from the

197th Judicial District, Cameron County, Texas, to7

represent Rafael Leyva in Cause No. 85-CR-244-C . The

arraignment on said cause was set for April 11, 1985 at

1:00 p.m. Prior to the day of the arraignment, I visited

with Rafael Leyva at the Cameron County Jail Infirmary,

and interviewed Leyva about the case. On the day of

arraignment, I was advised that Horacio Barrera, would be

representing Ra fael Leyva, in said cause. Thereto I

proceeded to leave the cou rtroom, as I was leaving the

courtroom, Raul Martinez, Administrative Assistant to the

197th District, called me back and advised me that I

would be representing D avis Losada in Cause No. 85-CR224-C.”

The district court granted the stay of execution over respondent’s

objection. Respondent appealed the grant of the stay to this Court

which, on March 22, 1990, affirmed the grant of stay and remanded

to the district court for further proceedings. L osada v. Collins

,

8 99 F.2d 13 (5th Cir. 1990)(table). Following remand, the State

filed an answer and motion for summary judgment on August 6, 1991.

The motion for summary judgment urged, inter alia

, that no actual,

as opposed to hypothetical or speculative, conflict of interest on

attorney Peña’s part was shown, there was no simultaneous

representation or joint fee arrangeme n t, another attorney had

negotiated Leyva’s plea agreement with the prosecution, and no area

of inquiry or cross-examination of Leyva which Peña should have,

but did not, pursue was ident ified. The record reveals that no

response to this motion was filed by or on behalf of Losada. After

the Stat e’s motion for summary judgment had been pending without

response for nearly one and a half years, the dist rict court, on

December 16, 1992, entered a memorandum opinion and order denying

Losada’s petition for habeas relief.1 The finding by the district court erroneously attributes the

State’s cross-ex amination of Leyva to defense counsel. However,

because this fact does not alter our conclusion that no actual

conflict was demonstrated by Losada, this error is harmless. Fed.

R. Civ. P. 61.

8 With regard to the ineffective assistance of coun sel claim,

the district court held that Losada failed to demonstrate that Peña

was operating under an actual conflict of interest so as to entitle

him to a presumption of prejudice under the first prong of Cuyler

v. Sullivan

, 100 S.Ct. 1708 (1980). Relying on this Court’s

decision in United States v. Olivares

, 786 F.2d 659, 663 (5th Cir.

1986), the district court observed, “[t]he Fifth Circuit has held

that ‘active representation of conflicting interests connotes more

than merely cross-examining a former client at an earlier stage in

the case.

. . .’” The district court noted that there had been

neither joint representation nor a jo int fee agreement as in

Olivares , and that “[a]t the most Losada alleges that his counsel

represented the witness for approximately one week prior to his

arraignment, and interviewed him at that time.” I d

. The district

court additionally found that:

“[w]hile counsel’s cross-examination of the witness was

short at best, Losada does not identify any other avenues

of cross-examination that couns el should have, but did

not pursue. The record reflects that counsel emphasized

the witness’ criminal record and, the fact that the

witness’ initial statement to law enforcement officials

discounted his own role in the rape and murder, contrary

to his trial testimony. Therefore counsel’s short crossexamination may be considered trial strategy. . . . 1

After addressing the numerous other errors raised by Losada,9

the district court denied relief. Thirty days later, on January

1 5, 1993, Losada filed a motion to reopen the cause to receive

additional evidence and requested an evidentiary hearing. On the

same day, Losada also filed a notice of appeal from the December

16, 1992, order. Losada sought to submit a second affidavit by

Peña dated January 15, 1993, which states in relevant part:

“My representation of Rafael Leyva was brief but

detrimental to the p etitioner. I visited Leyva at the

infirmary where he was detained for protection purposes.

I interviewed Leyva for approximat ely an hour. We

discussed the purpose of the arraignm ent, the plea

b argain he had been offered and discussed some of the

facts. Leyva and I showed up for arraignment together in

court. I was advised that I had been removed from

Leyva’s repre s entation and the court had decided to

continue with the proviously [sic] appointed counsel who

in turn had represented Leyva during certification as an

adult. As I walked out of the court, I recall [sic] back

to the courtroom and advised that I had been appointed to

represen t the petitioner. I was placed in a situation

where I had a legal obligation to represent the

Petitioner but I also had an ethical obligation to Leyva,

however brief [sic] I had represented Leyva prior to

Petitioner’s representation. It was my belief that the

court knew better [sic] to have appointed me to represent

both defendant [sic] in the same case, knowing one was a

“star” witness for the prosecution. Furthermore, the

appointment was done during the arraignment and

t herefore, the court knew or should have known of the

possibility of conflict. He appointed me, I thought it

was fine to represent the petitioner. During the trial

I did not continue to cross-examine Leyva. I could not

cro ss-examine Leyva without going into what we had

discussed during our interview at the detention center.

The extent of my attack on Leyva was limited primarily to

the closing arguement [sic] and to his testimony on

direct by the state. The Court was aware of my

representation of Leyva and the petitioner since the

appointment of my representation of the pet itioner was

during arraignment and in the courtroom. However brief,

the representation of Leyva was detrimental to the

Petitioner. None of our discussions (Leyva) came out

during the trial.”10

By order entered September 8, 1995, the district court denied

L osada’s pending motions and granted a Certificate of Probable

Cause. Losada, on September 29, 1995, filed a notice of appeal

from the September 8, 1995, order. Losada’s two appeals were

consolidated in this Court.

Discussion

In order to be entitled to an evidentiary hearing before the

district court, a habea s petitioner must allege specific facts

which, if proven, would entitle him to relief. J ernigan v.

Collins

, 980 F.2d 292, 296 (5th Cir. 1992), cert. denied

, 113 S.Ct.

2977 (1993); Young v. Herring

, 938 F.2d 543, 559-60 (5th Cir.

1991), cert. denied, 112 S.Ct. 148 5 (1992). “The [habeas]

petitioner must set f orth specific allegations of fact, not mere

co nclusory allegations,” J ohnson v. Scott

, 68 F.3d 106, 112 (5th

Cir. 1995), and “[t]he court need not blindly a ccept speculative

and inconcrete claims as the basis upon which to order a hearing,”

Ellis v. Lynaugh , 873 F.2d 830, 840 (5th Cir.), cert. denied , 110

S.Ct. 419 (1989) (internal quotation marks omitted).

Claims of ineffective as sistance of counsel based upon an

attorney conflict of interest resulting from joint or serial

representat ion of multiple clients is governed by the presumed

prejudice standard of Cuyler, 100 S.Ct. at 1717. S ee Beet s v.

Scott

, 65 F.3d 1258 (5th Cir. 1995)( en banc ), cert. denied, 116

S.Ct. 1547 (1996). “In order to establish a violation of the Sixth11

Amendment, a defendant who raised no ob jection at trial must

demonstrate that an actual conflict of interest adversely affected

his lawyer’s performance.” C uyler

, 100 S.Ct. at 1718; see also,

Strick land v. Washington , 104 S.Ct. 2052, 2067 (1984); B urger v.

Kemp

, 107 S.Ct. 3114, 3120 (1987). The mere “possibility of

conflict is insufficient to impugn a criminal conviction.” C uyler

,

100 S.Ct. at 1719. An actual conflict arises when an attorney

“actively represent[s] conflicting interests,” id ; United States v.

Garcia

, 77 F.3d 857, 860 (5th Cir. 1996), petition for cert.

filed ,(June 17, 1996)(No. 95-937 4), or put differently, “when an

attorney represents two clients whose interests in the outcome of

a matter are different.” P erillo v. Johnson

, 79 F.3d 441, 447 (5th

Cir. 1996). “[U]ntil a defendant shows that his counsel actively

represented conflicting interests, he has not establ i shed the

constitutional predicate for his claim of ineffective assistance.”

Cuyler , 100 S.Ct. at 1719.

The adverse ef fect prong of the C uyler standard requires a

lesser showing “than the outcome-determinative prejudice standard”

of Strickland

. U nited Stat es v. McCaskey , 9 F.3d 368, 381 (5th

Cir. 1993), cert. denied

, 114 S.Ct. 1565 (1994). “[T]o show

adverse effect, a petitioner must demonstrate that some plausible

defense strategy or tactic might have been pursued but was not,

because of the conflict of interest.” Perillo , 79 F.3d at 449.

In his appellant’s brief, Losada, through counsel, argues that2 Losada asserts that the law presumes that an attorney

receives confidential communications during the course of

representing a client. While we have applied such a presumption in

the context of motions to disqualify counsel in civil proceedings,

se e, e.g., In re American Airlines, Inc

. , 972 F.2d 605, 614 (5th

Cir. 1992), cert. denied, 113 S.Ct. 1262 (1993), Losada does not

cite nor do we find precedent fro m this Circuit applying such a

12 he received ineffec tive assistance of counsel during his state

trial because Peña labored under a conflict of inter est arising

from his brief representat ion of Leyva prior to Leyva’s

arraignment. In particular, Losada urges that an actual conflict

existed because Peña was unable to adequately cross-examine Leyva

without delving into confidences that he received during his brief

interview with Leyva prior to Leyva’s arraignment.

Indeed, “[i]t is well established [sic] that the defendant is

denied effective assistance of counsel in those instances where an

attorney is unable to cross-examine, or is chilled in the crossexamination of, a government witness because of the attorney/client

privi lege arising from counsel’s prior representation of the

witness or from his duty to advance the interests of the witness as

a current client.” U nited States v. Soudan

, 812 F.2d 920, 927 (5th

Cir. 1986), cert. denied, 107 S.Ct. 2187 (1987). As the abovequoted passage from Soudan suggests, to demonstrate an actual

conflict resulting from successive representation of two clients,

one of whom is now serving as the state’s witness against the

other, it must be demonstrated that some confidences passed between

the attorney and his former client. 2 Losada fails to make such apresumption to claims under the Sixth Amendment.

13 showing here.

The initial Peña affidavit does not indicate that any

confidences passed between Peña and Leyva during the course of the

representation. Nor is there any allegation to that effect in

Losada’s second habeas petition (which incorporated Peña’s attached

affidavit ). Peña’s affidavit indicates merely that he was

appointed to represent Leyva, “interviewed Leyva about the case”

prior to the arraignment, and after bei ng replaced as Leyva’s

counsel was appointed to represent Losada. That Peña and Leyva

discussed the “case” does not tell us, and more importantly did not

inform the district court, whether they discussed the facts of the

rape-murder as opposed to merely the terms of the plea agreement

which Leyva——through counsel (Barrera) other than Peña——had entered

into with the state, or the purpose of the arraignment. In short,

the affidavit is simply insufficient to reflect that any

confidences passed between Peña and Leyva which would create a

conf lict when Peña was later (after his brief representation of

Leyva had terminated) required to cross-examine Leyva at Losada’s

trial.

Peña’s second affidavit more clearly avers: “I did not

continue to cross-examine Leyva. I could not cross-examine Leyva

without going into what we had discussed during our interview at

the detention center.” However, this affidavit was not submitted14

to the district court until January 15, 1993, nearly one month

after entry of the order denying habeas relief, and well after the

time for filing a motion for new trial. The district court

subsequently denied the motion to reopen to consider this affidavit

and to set aside its December 16, 1992, order.

A district court’s denial of a Rule 60(b) motion is reviewable

only for abuse of discretion. S ee, e.g., Government Fin. Serv. One

Ltd. Partnership v. Peyton Place, Inc

., 62 F.3d 767, 770 (5th Cir.

1995). Treating Losada’s motion as one under Rule 60(b)(2) seeking

relief from the judgment on the grounds of newly discovered

evi dence, we find no such abuse of discretion here. There is

certainly nothing to suggest that the second Pe ña affidavit

constitutes newly discovered evi dence at all. The first Peña

affidavit demonstrates that Peña was clearly available to Losada

long before the dismissal of his habeas petition. S ee Behringer v.

Johnson , 75 F.3d 189, 190 (5th Cir.)(habeas petitioner’s evidence

not newly discovered where knew factual basis of claim prior to

filing petition, and neither presented claim no r asserted that

witness unwilling to provide an affidavit), cert. denied, 116 S.Ct.

1284 (1996). Furthermore, a movant under Rule 60(b)(2) is required

to demonstrate that due diligence was exercised in obtaining the

newly discovered evidence. Id . at 771; New Hampshire Ins. Co. v.

Martech USA

, 993 F.2d 1195, 1200-01 (5th Cir. 1993). Losada’s

motion offers no explanation whatever for the failure to obtain and3 Even if we were to consider the second Peña affidavit, we

would ultimately reach the same result as Losada is unable to

demonstrate any adverse effect which Peña’s asserted conflict of

interest had upon his representation. Although the second Peña

affidavit states that, “I could not cross-examine L eyva without

going into what we had discussed during our interview at the

detention center,” and that “[h]owever brief, the representation of

L eyva was detrimental to the petitioner,” these statements ar e

wholly conclusory, and there is no indication of either the nature

of the confidences or of what areas of cross-examination of Leyva

they allegedly precluded. As this Court only recently held in

Perillo

, “to show adverse effect, a petitioner must demonstrate

that some plausible defense strategy or tactic might have been

pursued but was not, because of conflict of interest.” P erillo

, 79

F.3d at 449.

Losada first argues that the attorney/client privilege itself

prevents him fro m demonstrating any adverse effect because he is

unabl e to ascertain what additional avenues of cross-examination

conflict-free counsel might have pursued without being privy to the

very information cloaked by the privilege. This argument reflects

15 submit the second Peña affidavit earlier in these proceedings other

than that some of the research duties had been assigned to

assisting counsel of record, and counsel’s belief (not assertedly

induced by anything done by the district court or the state) that

an evidentiary hearing would be scheduled pursuant to this Court’s

1990 remand. If anything, the reasons proffered in support of the

motion tend to demonstrate a lack of diligence on the part of

counsel in submitting the second affidavit. After the State’s

motion for summary judgment had been pending for nearly a year and

a half without response from Losada, the district court was

entitled to assume that none was forthcoming. We cannot say on

these facts that the district court abused its discretion in

denying Losada’s January 15, 1993, motion, and acco rdingly the

second Peña affidavit was not before the district court. 3a misunderstanding of Perillo

. Losada is not required to come

forward with specific information possessed by Leyva w hich would

exculpate him, but only to identify some strategy or theory which

was foreclosed to Peña as the result of his prior representation of

Leyva. Neither in his brief nor at oral argument was counsel for

Losada able to identify any such theory.

Losada additionally argues that “Peña did not test Leyva’s

credibility with his prior inconsistent statements or his

protective custody status or his many other arrangements with the

State prosecution team and judiciary.” However, none of these

matters were privileged as they had already been placed before the

jury during the state’s direct e xamination in an effort to

“insulate” Leyva on cross-examination. Because these matters were

not privileged, it follows that Peña’s prior representat ion of

Leyva in no way prevented him from thoroughly cross-examining Leyva

i n order to bring his credibility into question. Not only were

these facts clearly placed before the jury, but Peña attacked

Leyva’s credibility extensively in closing argument on these very

grounds.

When pr essed at oral argument, Losada’s counsel argued that

Leyva had testified at Cardenas’ trial that Losada had not told him

to strike Perales, but that the others did. Losada’s counsel noted

that this was inconsistent with Leyva’s testimony at Losada’s trial

in which he indicated that “ all” of the others had told him to

strike Perales with the pipe. Losada’s counsel argues that this

inconsistency could have been brought out under proper crossexamination. However, the record of the Cardenas trial was never

submitted at any stage of this proceeding despite the fact that

Cardenas’ trial was held long before the current federal habeas

petit ion was filed. S ee Cardenas v. State

, 730 S.W.2d 140 (Tex.

App.--Corpus Christi 1987, no pet.)(direct appeal of Cardenas’

conviction in 1987).

16 The mere fact of multiple, much less serial, repr esentation

alone does not establish an impermissible conflict o f interest.

See Cuyler

, 100 S.Ct. at 1718; see also, United States v. Rico

, 51

F.3d 495, 508 (5th Cir.)(joint representation does not necessarily

create conflict of interest), cert. denied, 116 S.Ct. 220 (1995).

Having failed to demonstrate that any confidences passed between

Leyva and Peña, the facts alleged in the affidavits submitted in17

support of Losada’s claim present only a potential, as opposed to

an actual, conflict of interest. Such allegations warrant neither

an evidentiary hearing, see Jernigan, supra

, nor other habeas

relief.

That a conflict does not necessarily inhere in very instance

of serial representation similarly undermines Losada’s claim that

the state trial court failed in its duty to inquire as to the

existence of a possible conflict of interest. The Supreme Court

explained the limited nature of the state court’s duty in Cuyler as

follows:

“ Holloway requires state trial courts to investigate

timely objections to multiple representation. But

nothing in our precedents suggests that the Sixth

Amendment requires state courts themselves to initiate

inquiries into the propriety of multiple representation

in every case. Defense counsel have an ethical

obligation to avoid conflicting representations and to

advise th e court promptly when a conflict of interest

arises during the course of trial. Absent special

circumstances, therefore, trial courts may assume either

that multiple representation entails no conflict or that

the lawyer and his clients knowingly accept such risk of

conflict as may exist . . .Unless the trial court knows

or re asonably should know that a particular conflict

exists, the court need not initiate an inquiry.” C uyler

, 100 S.Ct. at 1717 (footnotes omitted).

Assuming, without deciding, that th is limited inquiry duty even

applies to cases of serial as opposed to multiple representation,

we find nothing in the record here which constitutionally mandated

such an inquiry by the state court. It is undisputed that there

was no objection a t trial. Nor can we accept Losada’s argument

that the fact that the trial court made both appointments and that18

the appointments appeared on the docket sheet should have triggered

such an inquiry. These facts simply reflect Peña’s successive

representation of Leyva and Losada, and do not necessarily suggest

a conflict of interest. Furthermore, we have held in an analogous

situation that where a federal district court fails to inquire into

the possibility of a conflict of interest in cases of joint

representation as required by Federal Rule of Criminal Procedure

44(c), we will not find reversible error where the record does not

reflect an actual conflict of interest as in the present case.

United States v. Holley , 826 F.2d 331, 333 (5th Cir. 1987), cert.

denied , 108 S.Ct. 1222 (1988).

Accordingly, the judgment of the district court is hereby

AFFIRMED.