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SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

JAMES DALE HOLCOMBE v. FLORIDA

ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT 

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

No. 21–53. Decided February 28, 2022

 The petition for a writ of certiorari is denied.

 JUSTICE SOTOMAYOR, dissenting from the denial of certiorari. 

An attorney jointly represented four codefendants in a 

criminal case. As trial neared, two of the defendants accepted plea deals and agreed to testify against the other 

two: James Dale Holcombe, the petitioner here, and his father, Dale Chester Holcombe.1 This created a conflict of interest that even the prosecutor deemed nonwaivable. Nevertheless, the trial court refused defense counsel’s offer to 

withdraw from representing the cooperating codefendants 

and neglected to conduct a detailed inquiry into the nature 

and extent of the conflict. The case went to trial, and Holcombe’s attorney cross-examined his two cooperating clients, whose sentences depended on the quality of the testimony they provided against Holcombe. Holcombe was 

convicted, and the Florida Court of Appeal affirmed. Because this Court’s precedents require vacating Holcombe’s 

conviction, I would summarily reverse. 

I 

At the outset of his criminal prosecution, Holcombe, Dale,

and their two codefendants were represented by the same 

counsel. During a pretrial conference, defense counsel advised the trial court that he would be representing all four 

codefendants. He explained that he had advised each of the 

—————— 1For clarity, I refer to Dale Chester Holcombe by his given name and 

to the petitioner by his surname.
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SOTOMAYOR, J., dissenting

defendants to consult with an independent attorney about 

the joint representation; that the defendants had done so; 

and that they wished to waive any conflict and have their 

counsel continue representing them. The trial judge discussed some of the risks of joint representation with the defendants, expressing concern that they were in “dangerous 

territory” and “on super thin ice.” App. to Brief in Opposition A–12. The attorney responded that “all these cases are 

probably going to resolve within a certain margin of error 

that we’re prepared to accept as a group,” and that he was 

“not aware of any particular conflict based on our current 

strategy.” Id., at A–16 to A–17. Counsel noted, however, 

“that if there becomes a conflict I will have to withdraw.” 

Id., at A–16. The court ultimately concluded that the arrangement was not illegal or unethical because the defendants had discussed it and signed a conflict waiver.

As trial approached, however, the nature of the conflict 

shifted. During another pretrial hearing, defense counsel

informed the trial court that two of Holcombe’s codefendants had entered pleas. Soon thereafter, the prosecution

decided to call them as witnesses against Holcombe and 

Dale at trial. All four of the codefendants were still represented by the same counsel. 

Before jury selection began, the prosecutor told the trial 

court that, in her opinion, “[t]he circumstances [had]

changed” and that Holcombe’s two codefendants’ decisions 

to accept plea deals created a “greater conflict that . . . is 

not waiveable.” App. to Pet. for Cert. A–34 to A–35. The 

prosecutor explained that, because the trial court had postponed the two codefendants’ sentencing until after they testified against Holcombe and Dale, the sentences they received would depend on the quality of their testimony. See 

id., at A–34 (“[I]t’s in their best interest to cooperate and 

testify truthfully in order to benefit from the plea discussions”). Yet in order to represent Holcombe and Dale at 

trial, the defense attorney would be required to cross- 
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SOTOMAYOR, J., dissenting

examine those other two codefendants—his “current clients,” whose sentences would be determined based on how 

“cooperative” they were with the State. Ibid. In other 

words, the shared attorney’s divided loyalties might result 

in a less-than-exhaustive cross-examination of the cooperating witnesses, to Holcombe’s and Dale’s detriment. Upon 

hearing the prosecutor’s explanation, defense counsel offered to withdraw from representing the two codefendants 

and have conflict counsel appointed instead. Defense counsel proceeded to explain that he “d[id]n’t know that [withdrawing would] cur[e]—,” at which point the trial judge interrupted. App. to Brief in Opposition A–34.

Despite being made aware of this patent conflict, the trial 

judge did not question the remaining two defendants, encourage them to speak to an unconflicted attorney, or advise them that they had a right to separate representation. 

Instead, the court simply rejected defense counsel’s offer to 

withdraw, concluding that any conflict had been properly 

waived earlier in the proceedings, before the two codefendants accepted the plea deals and began cooperating with the 

prosecution. The trial proceeded; Holcombe’s two codefendants testified against him and Dale on behalf of the prosecution (and were cross-examined by their shared attorney); 

and Holcombe was convicted and sentenced to 10 years in 

prison.2

The Florida Court of Appeal affirmed. It concluded that

an attorney’s simultaneous representation of both a criminal defendant and two prosecution witnesses, and his crossexamination of those witnesses, does not, without more, 

create an actual conflict for the purpose of the Sixth Amendment. Because Holcombe had not shown any adverse effect 

on defense counsel’s performance, the court held that reversal was unwarranted.

—————— 2Dale was convicted as well. See Tr. 1147–1148.
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SOTOMAYOR, J., dissenting

II

Although a joint representation of codefendants “is not 

per se violative of constitutional guarantees of effective assistance of counsel,” this Court has recognized that a “[j]oint 

representation of conflicting interests is suspect” because 

“the advocate finds himself compelled to refrain” from vigorously defending his clients. Holloway v. Arkansas, 435 

U. S. 475, 482, 489, 490 (1978) (emphasis deleted). Courts

therefore bear a responsibility to investigate if they “kno[w] 

or reasonably should know that a particular conflict exists.” 

Cuyler v. Sullivan, 446 U. S. 335, 347 (1980); accord, Holloway, 435 U. S., at 483 (explaining that a trial court has 

an “affirmative duty . . . to assure that criminal defendants 

are not deprived of their right to the effective assistance of 

counsel by joint representation of conflicting interests”). 

When a trial court is made aware of an actual conflict before 

trial and fails to inquire into the nature and scope of the 

conflict, reversal of a defendant’s conviction is automatic. 

See Mickens v. Taylor, 535 U. S. 162, 167–168 (2002); Holloway, 435 U. S., at 488–490.

In this case, the trial court properly discharged its obligation at the outset of proceedings, but failed to fulfill its 

renewed obligation after an actual conflict arose. At the 

outset, the trial court was made aware of a “possible” or “potential” conflict—that is, one that had not fully materialized 

because the codefendants’ interests could diverge but had 

not yet done so. See Wheat v. United States, 486 U. S. 153, 

163 (1988) (noting that a “potential” conflict “may or may 

not burgeon into an actual conflict as the trial progresses”); 

Sullivan, 446 U. S., at 348 (“[A] possible conflict inheres in 

almost every instance of multiple representation . . . ”). The 

trial court appropriately responded by inquiring into the 

codefendants’ consent to the joint representation, expressing well-founded concern that they were in “dangerous territory,” and approving the joint representation based on the 

codefendants’ waivers and counsel’s representation that 
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SOTOMAYOR, J., dissenting

any conflict remained hypothetical. App. to Brief in Opposition A–12.

Once notified that the codefendants’ interests had parted 

ways, however, the trial court was obligated to inquire further. That divergence of interests sharpened the potential 

conflict into an “actual” conflict—that is, one in which “the 

defendants’ interests . . . diverge with respect to a material 

factual or legal issue or to a course of action.” Sullivan, 446 

U. S., at 356, n. 3 (Marshall, J., concurring in part and dissenting in part). Such a conflict actually “affect[s] counsel’s 

performance,” unlike “the mere theoretical division of loyalties” presented by a possible conflict. Mickens, 535 U. S., 

at 171 (emphasis deleted). 

Here, the prosecutor unequivocally identified an actual

conflict, different in kind from the potential conflict the trial 

court had previously considered, by explaining that Holcombe’s codefendants’ decisions to testify against him created an unwaivable conflict. Her concerns were well 

founded. The codefendants’ pleas put defense counsel in an 

impossible dilemma: If the attorney successfully undermined the codefendants’ testimony, he would aid Holcombe’s defense, but potentially jeopardize the codefendants’ ability to obtain lenient sentences. Holding back 

against the codefendants, on the other hand, would improve 

their chances at sentencing, but allow the State’s key witnesses to provide damning evidence against Holcombe. 

Once notified of this conflict, the trial court had an obligation to inquire further into its nature and extent. At minimum, given that the potential conflict had matured into an 

actual conflict, the court should have taken the precaution 

of advising the defendants to confer again with unconflicted

counsel regarding the propriety of the representation and 

should have directly explained the serious dangers of continuing with an actually conflicted attorney. Because it did 

not, reversal of Holcombe’s conviction on appeal should 

have been automatic. See Sullivan, 446 U. S., at 350; see 
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also Holloway, 435 U. S., at 488. 

The Florida Court of Appeal erred by concluding that Holcombe bore the additional burden of proving an adverse effect on his representation. The court relied on Mickens, but 

that case declined to apply Holloway’s “automatic reversal 

rule,” Mickens, 535 U. S., at 168, for two reasons not present here. First, the Court in Mickens distinguished Holloway on the ground that defense counsel failed to object to

“his inability simultaneously to represent multiple defendants” before the trial court. Mickens, 535 U. S., at 173. Second, Mickens concerned only a potential conflict of interest 

resulting from successive representations, rather than the 

type of joint (concurrent) representation addressed in Holloway or the actual conflict identified here. See Mickens, 

535 U. S., at 175 (distinguishing “the high probability of 

prejudice arising from multiple concurrent representation” 

from other attorney conflicts, including “prior representation”). 

 Unlike Mickens, this case concerns an actual conflict created by a simultaneous joint representation that was timely 

brought to the trial court’s attention. That it happened to 

be the prosecutor who first raised the conflict does not affect 

whether Holloway’s automatic reversal rule applies. This 

Court’s precedents hold that the duty to inquire is a duty of

the trial court—not of any particular party. Sullivan, 446 

U. S., at 347; Mickens, 535 U. S., at 168–169; Holloway, 435 

U. S., at 483. Consistent with this principle, the key question is whether the trial court was alerted to the conflict, 

not by whom. See, e.g., Wood v. Georgia, 450 U. S. 261,

272–273 (1981) (“Any doubt as to whether the court should 

have been aware of the [conflict] is dispelled by the fact that 

the State raised the conflict . . . explicitly and requested 

that the court look into it”); see also Mickens, 535 U. S., at 

168 (where “[n]either counsel nor anyone else objected to 

the multiple representation,” Holloway’s rule did not apply); Sullivan, 446 U. S., at 347 (where “[n]o participant in 
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SOTOMAYOR, J., dissenting

[the defendant’s] trial ever objected to the multiple representation,” the Sixth Amendment did not obligate the trial 

court to inquire). A contrary rule would offer less protection 

to those defendants whose counsel is so severely conflicted 

that even the prosecution is compelled to voice its concern.

Decades ago, this Court explained that “[t]he mere physical presence of an attorney does not fulfill the Sixth 

Amendment guarantee when the advocate’s conflicting obligations have effectively sealed his lips on crucial matters.” 

Holloway, 435 U. S., at 490. The proceedings below failed 

to protect that core constitutional guarantee. For these reasons, I would summarily reverse the judgment of the Florida Court of Appeal.