FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 15, 2001 THOMAS K. KAHN CLERK [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 00-12207

________________________ D. C. Docket No. 94-02859-CV-RLV-1 JANSSEN REYNOLDS, Petitioner-Appellant,

versus JOHN CHAPMAN, Warden, et al., Respondents-Appellees.

________________________ Appeal from the United States District Court for the Northern District of Georgia

_________________________ (June 15, 2001) Before WILSON and COX, Circuit Judges, and RYSKAMP*, District Judge.

____________ * Honorable Kenneth L. Ryskamp, U.S. District Judge for the Southern District of Florida, sitting by designation.2 WILSON, Circuit Judge: Janssen Reynolds, a Georgia prisoner se rving concurrent life sentences for rape, kidnaping, and aggravated sodomy, appeals from the district court’s denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Reynolds argues that his defense a ttorney, William Hankins, labored under conflicts of interest at both the pre-tr ial and the immediate post-trial stages of Reynolds’s case, and that these conflic ts rendered Hankins’s representation of Reynolds constitutionally ineffective. Af ter a careful consideration of the briefs and the record, we conclude that Hankins had a potential conflict of interest at the pre-trial stage of Reynolds’s case that ne ver ripened into an actual conflict. However, at the post-trial stage, Ha nkins operated under an actual conflict of interest that resulted in a compromise of Reynolds’s interests for the benefit of another party. The representation that Reynolds received in this post-trial period was constitutionally deficient, and the distri ct court erred in failing to make such a finding. Accordingly, we affirm in part, reverse in part, and remand the case to the district court, with instructions to di rect the Superior Court of DeKalb County,1 These new post-trial proceedings should include the opportunity to file a Motion for a New Trial, as well as the opportunity for a new appeal. 3 Georgia to grant petitioner the opportunity for new post-trial proceedings on the basis of his claims of ineffective assistance of post-trial counsel. 1
I.
FACTS Reynolds and three co-defendants (Arl ee Harris, Andrew Lee Curtis, and Shionoski Thomas) were indicted by a De Kalb County, Georgia grand jury in 1981 for the kidnaping, rape, sodomy, and robbe ry of Caroline Garritano and aggravated assault upon her former boyfriend, Kevin Co mpanik. Each of the defendants was individually represented, but the attorn eys for Reynolds, Harris, and Thomas all worked in the office of the DeKalb Count y Public Defender. Curtis retained a private attorney for his defense. In the pretrial period, the attorney s for co-defendants Harris and Thomas worked out a plea arrangement with the state, whereby Harris and Thomas would plead guilty to the rape charge and accept a sentencing recommendation of twenty years, to serve eight years. In excha nge, the remainder of the charges would be nolle prossed . Hankins informed Reynolds of the possibility of securing a plea arrangement from the prosecutors, and disc ussed the possible benefits of accepting2 The terms of the plea arrangement Reynolds was offered at this point are unclear. In testimony offered at a subsequent federal evidentiary hearing, the prosecutor in Reynolds’s case indicated that he felt Reynolds was more culpable than co-defendants Thomas and Harris, and recalled that he offered to permit Reynolds to plead guilty to rape in exchange for an agreement to serve twenty years. The magistrate judge’s Report and Recommendation suggests that Reynolds was offered the same plea arrangement as Harris and Thomas. In any event, it is clear from the record that Hankins engaged in plea negotiations with the prosecutor on Reynolds’s behalf, and that Reynolds rejected the state’s offer.

3 Hankins testified at the federal habeas evidentiary hearing that his strategy had been to shift as much blame as possible onto Curtis and the absent co-defendants, and to “shrink in the 4 a plea arrangement versus the possible risks of going to trial. 2 Reynolds rejected the offer, insisting on his innocence, and elected to take his chances at trial. On the morning of the trial, Hankins informed Reynolds that Harris and Thomas had accepted the plea deal outlined above. Upon learning that two of his co-defendants had taken this step, Reynolds asked Hankins to attempt to secure the same plea arrangement. The prosecutor was unwilling to make the same offer to Reynolds, and instead offered to permit him to plead guilty to the rape charge without a sentencing recommendation in ex change for the state’s agreement to nolle prosse the other charges. Reynolds found this proposed plea deal unacceptable, and the case went to trial. Reynolds and his remaining co-defendant , Curtis, took substantially adverse positions at the trial. Reynolds’ defens e relied heavily on the fact that the evidence against Curtis was stronger thanthe evidence implicating Reynolds, and Reynolds hoped to profit by the comparison. 3 Reynolds did not testify at trial,courtroom and be out of sight.” Hankins’s strategy was not without foundation. The victim clearly identified Curtis as being one of her a ttackers, and there was scientific evidence linking Curtis to the crime, while neither of these conditions held true for Reynolds. 5 though Curtis did, where he denied particip ation in the crime and testified that his only encounter with the victim on the night in question came when she voluntarily entered his house (presumably after the crime occurred) and asked to use the restroom. Curtis’s mother corroborated his story, and as a result of this testimony, the trial judge held her in contempt of court for perjury and had her incarcerated. Neither Harris nor Thomas testified at trial. Hankins’s strategy proved unsuccessful , as both Curtis and Reynolds were convicted of rape, aggravated sodomy, kidnaping, and the lesser included offense of simple battery. Both defendants were sentenced to concurrent life terms on the rape, sodomy, and kidnaping charges, and 12-month sentences on the simple battery count, also to be served concurrently. The lawyer representing Curtis withdrew after the trial, and the trial judge appointed Hankins to represent both Curtis and Reynolds at the “Motion for a New Trial” stage of the case. Hankins filed a motion for a new trial solely on Reynolds’s behalf on March 12, 1982; on Marc h 22 of that year, he filed the same motion on Curtis’s behalf. On March 17, 1983, Hankins filed a “brief in support of defendant’s motion for a new trial” which contained the names of both Curtis and4 The record does not reflect the reason for the year-long hiatus separating the motions for a new trial and the brief in support of those motions. 6 Reynolds. 4 In the brief, he made a series of arguments for a new trial on behalf of both defendants. On March 31, 1983, the court denied both defendants’ motions. Curtis secured separate counsel for his appeal.
PROCEDURAL HISTORY The procedural history of this case is lengthy and complex, though our recounting of it will be brief. Following an unsuccessful direct appeal, Reynolds filed two state and two federal petitions fo r writs of habeas corpus over the next seven years. During the course of hi s second federal habeas petition, Reynolds became aware of two especially salient fact s: (1) that Hankins was a member of the same public defender’s office as the attorn eys that represented his co-defendants Harris and Thomas, and (2) that Hankins represented both Curtis and Reynolds in the post-trial stages of the case. As Reynolds was unaware of these problems until this point, he had not addressed them inany state collateral proceeding, and the district court dismissed his habeas petition without prejudice so that he could make the conflict of interest arguments at the st ate level. Reynolds promptly filed a third state habeas petition, arguing that his counsel labored under an unconstitutional conflict of interest in both the pre-trial and post-trial stages of his case.7 In June of 1994, the Muscogee County Superior court dismissed Reynolds’s third habeas petition as successive under Georgia law. After the Georgia Supreme Court affirmed, Reynolds filed the instant petition for federal habeas corpus relief in the Northern District of Georgia in October of 1994. While the state argued that the instant petition was procedurally defaulte d, the magistrate judge assigned to the case found that the petition met the “ cause and prejudice” exception to the procedural default rule. The magistrate judge further recommended granting Reynolds’s habeas petition, as Reynolds had successfully demonstrated that his attorney labored under conflicts of interestat both the pre-trial and post-trial stages of the case. Following an objection by the respondent, the district court declined to accept the magistrate judge’s recommendation, and returned the case to the magistrate judge for further briefing and consideration. In April of 1999, the magistrate judge issued a new Report and Recommendation, again finding that the cause and prejudice rule excused Reynolds’s procedural default. However, this time the magistrate judge recommended thatthe district court deny Reynolds relief on the conflict of interest claims. The district court adopted the magistrate’s recommendation in January of 2000, and granted a certificate of appealability5 A district court’s findings of fact in a habeas proceeding are reviewed for clear error. See Byrd v. Hasty , 142 F.3d 1395, 1396 (11th Cir. 1998). 8 limited to the issue of whether Reynolds was denied the effective assistance of counsel due to his attorney’s possible conflict(s) of interest.

II.
DISCUSSION We review a district court’s decision to grant or deny a habeas petition de

novo . See Sims v. Singletary , 155 F.3d 1297, 1304 (11th Cir. 1998). The substance of this appeal concerns wh ether an attorney rendered ineffective assistance due to a conflict of interest, wh ich is a mixed question of law and fact also subject to de novo review. 5 See id ; Freund v. Butterworth , 165 F.3d 839, 862 (11th Cir. 1999) (en banc), cert. denied , 528 U.S. 817 (1999). The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to effective assist ance of counsel, and effective assistance includes a right to counsel “uni mpaired by conflicting loyalties.” Duncan v. Alabama , 881 F.2d 1013, 1016 (11th Cir. 1989). The duty of unfettered loyalty to one’s clients is among the most central of a criminal defense attorney’s responsibilities. See Strickland v. Washington , 466 U.S. 668, 692 (1984).9 Ineffective assistance of counsel claims in the conflict of interest context are governed by the standard articulated by the Supreme Court in Cuyler v. Sullivan , 446 U.S. 335 (1980). Cuyler establishes a two-part test that we use to evaluate whether an attorney is constitutionally ine ffective due to a conflict of interest. To show ineffectiveness under Cuyler , a petitioner must demonstrate: (a) that his defense attorney had an actual conflict of interest, and (b) that this conflict adversely affected the attorney’s performance. See Cuyler , 446 U.S. at 348-49. A series of opinions from this cour t have interprete d and refined the meaning of both prongs of the Cuyler test. To satisfy the “actual conflict” prong, a defendant must show something more th an “a possible, speculative, or merely hypothetical conflict.” Lightbourne v. Dugger , 829 F.2d 1012, 1023 (11th Cir. 1987). In Smith v. White , 815 F.2d 1401 (11th Cir. 1987), we developed a test that enables us to distinguish actual from potential conflicts of interest: We will not find an actual conflict of interest unless appellants can point to specific instances in the record to sugge st an actual conflict or impairment of their interests . . . . Appellants must make a factual showing of inconsistent interests and must demonstrate that the attorney made a choice between possible alternative causes of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other. If he did not make such a choice, the conflict remain(s) hypothetical. Smith , 815 F.2d at 1404.10 Assuming a defendant can demonstrate that his attorney labored under an actual conflict of interest, the Cuyler test demands that he show that this conflict adversely affected the representation he received. To prove adverse effect, a defendant needs to demonstrate: (a) that the defense attorney could have pursued a plausible alternative strategy, (b) that th is alternative strategy was reasonable, and (c) that the alternative strategy was not followed because it conflicted with the attorney’s external loyalties. See Freund , 165 F.3d at 860. We now apply these principles to each of Reynolds’s claims. A) Conflict of Interest at the Pre-trial Stage Reynolds contends that he did not recei ve Hankins’s undivided loyalty in the pre-trial stage, because Hankins’s law office (the DeKalb County Public Defender’s Office) represented two co-d efendants with interests contrary to Reynolds’s. The structure of Reynolds’s argument is as follows: (a) public defenders offices are “law offices” and s hould be treated as a law firm for the purposes of a conflict of interest analysis , (b) conflicts affecting one member of a law firm or law office are attributable to all members of the firm, (c) the interests of defendants Harris and Thom as were contrary to those of Reynolds, and one law office cannot have represented the three of them without an actual conflict of6 In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the Former Fifth Circuit handed down prior to October1, 1981. 11 interest, and (d) the conflict adversely a ffected Reynolds because he did not secure the same plea arrangement as his co-defendants. We can tentatively accept the first two premises of Reynolds’s argument. While public defenders’ offices have certa in characteristics that distinguish them from typical law firms, our cases have not drawn a distinction between the two. See Lightbourne , 829 F.2d at 1023 n.12 (finding that under the Florida Code of Professional Responsibility, “a conflict may arise when a public defender’s office represents clients with adverse interests.”); Mills v. Singletary , 161 F.3d 1273, 1287 (11th Cir. 1998) (acknowledging the possi bility of a conflict of interest in simultaneous representation of co-def endants by public defender’s office). It is also well established in this circuit that a lawyer’s confidential knowledge and loyalties can be imputed to his current partners and employees. See United States v. Kitchin, 592 F.2d 900, 904 (5th Cir. 1979) 6 ; Cox v. American Cast Iron Pipe Co. , 847 F.2d 725, 729 (11th Cir. 1988) ; Freund , 165 F.3d at 860, n. 33. The current disciplinary rules of the state bar in Georgia preclude an attorney from representing a client if one of his or he r law partners cannot represent that client due to a conflict of interest. See Ga. Rules of Professional Conduct , §4-102, Rule7 A similar rule was in effect in Georgia at the time of Reynolds’s trial. See Ga. Code of Professional Responsibility , Directory Rule § 5-105(d) (1980). 12 1.10(a) (2000). 7 The duties and loyalties of a particular attorney are imputed to his partners and employees, and Reynolds is co rrect that a law office that represents criminal defendants with divergent interest s risks running afoul of its clients’ Sixth Amendment rights. The circumstances surrounding Hankins’s representation of Reynolds in the pre-trial stage were sufficient to create a s ubstantial risk of a conflict of interest. Hankins’s professional colleagues in the public defender’s office were representing Reynolds’s co-defendants, and those co -defendants happened to be the very persons whom Reynolds blamed for the crim e. The possibility that the interests of one of the three co-defendants would be sacr ificed for the benefit of the others was considerable in such a situation. Reynol ds has successfully demonstrated that a potential conflict of interest existed inthe representation of these three codefendants by the same public defender’s o ffice, given the factual posture of this

case. However, Reynolds cannot take the n ecessary next step, and demonstrate that this potential conflict ever blosso med into an actual conflict within the meaning of Cuyler . An application of the test this court developed inSmith v.13 Whiteto the facts of the instant case will illustrate the absence of an “actual conflict.” Smith requires a petitioner to do two things to demonstrate that his attorney labored under an “actual conflict;” first, he must make “a factual showing of inconsistent interests,” and second, he mu st demonstrate that his attorney acted in some way that reflected the reality of th ese conflicting interests, such as “eliciting (or failing to elicit) testimony helpful to one client or harmful to the other.” See Smith, 815 F.2d at 1404-05. Reynolds has likely made the requisite factual showing of inconsistent interests. Reynolds was strategically committed to a defense based upon the supposition that he witn essed, but did not participate in, the crimes of his co-defendants. “Blame-shi fting” defenses among co-defendants are a reflection of inconsistent interests, and Reynolds has successfully demonstrated that he sought to employ such a defense in this case. However, Reynolds has not shown thatHankins performed in a manner that in any way reflected the divided loyalties of his office. The factual findings of the district court indicate that Hankins discharged his duties to Reynolds in a way completely consistent with Reynolds’s in terests. In the early stages of the representation, Hankins timely informed Reynolds of the plea arrangement the prosecutor offered, explained the implications of pleading guilty, as well as the14 risks and possible benefits of going to trial. Hankins accepted Reynolds’s decision to risk an adverse verdict at trial. Ha nkins informed Reynolds the day of the trial of the fact that Harris and Thomas had accepted a particular plea arrangement, and Reynolds, changing his mind, decided to accept the offer if available. The prosecutor declined to make the same offer to Reynolds, and Hankins informed Reynolds of the conditions under which the prosecutor would accept a guilty plea. Nothing in any of Hankins’s actions indicat es that he was affected by the fact that his colleagues negotiated guilty pleas for two of his client’s co-defendants. Reynolds argues that the instant case should be analogized to two earlier decisions of this court: Burden v. Zant , 24 F.3d 1298 (11th Cir. 1994), and Ruffin v. Kemp , 767 F.2d 748 (11th Cir. 1985). In both Burden and Ruffin , we found an actual conflict of interest existed where anattorney representing two co-defendants negotiated a plea arrangement for one in exchange for his testimony against the other. The present case is distinguishable from Ruffin and Burden. In both of those cases, the defense attorney to made a clearchoice to sacrifice the interests of one client for the benefit of another. It is obviously impossible to effectively serve both clients’ interests in such a zero-sum game.15 In the instant case, however, Harris’s and Thomas’s decisions to plead guilty do not appear to have affected Reynolds ’s prospects of securing a plea agreement. There is no evidence in the record sugge sting that Harris’s and Thomas’s pleas prevented effective plea bargaining for Reynolds. In fact, Hankins faithfully relayed the prosecutor’s early plea overtures to Reynolds, who rejected them. Reynolds received several opportunities to make a deal with the prosecutor in exchange for a reduced sentence, and it was his decision to decline such an arrangement. Reynolds has not demonstrated that the guilty pleas of Harris and Thomas adversely affected his op tions in the pre-trial stage. See Smith v.
Newsome , 876 F.2d 1461, 1463-64 (11th Cir. 1989) (holding that a lawyer’s performance was not adversely affected when“joint representation did not prevent effective plea bargaining for either client.”) The ultimate fact is that Reynolds cannot identify any flaw in Hankins’s performance that was related to the fact that Hankins’s co-workers represented Harris and Thomas. Indeed, the record reflects that Hankins’s representation of Reynolds at the pretrial stage was vigorous, loyal, and thorough. As such, Reynolds cannot demonstrate that Hankins labored under an “actual conflict” of interest at this stage of the proceedings, and thus cannot meet the first prong of the Cuyler test.16 B) Conflict of Interest at the Post-Trial Proceedings A glance at the facts surrounding Hankins’s post-trial representation of Reynolds reflects the problematic nature of that representation. Hankins was in the untenable position of advancing arguments urging that two defendants be granted a new trial after each of those defendants had spent the entire trial attempting to foist blame on the other. Reynolds suggests thatHankins’s loyalty to Curtis prevented Hankins from advancing certain credible arguments on Reynolds’s behalf. A close look at the record vindicates Reynolds’s claim. Hankins testified that his trial strategy was based largely on a desire to shift blame for the charged crimes to Curtis. Hankins felt that the evidence against Curtis was considerably stronger than the evidence against Reynolds, and he hoped that Reynolds would benefit from a comparison. This strategy was ultimately unsuccessful, as both Curtis and Reynolds were convicted. The brief Hankins filed in support of Curtis’s and Reynolds’s motion for a new trial contains a number of arguments on Reynolds’s behalf, many of them focusing on the lack of incriminating ev idence against Reynolds. The brief notes, for example, that Garritano could not identify Reynolds in a photographic lineup, and that there was not adequate corrobor ation of Reynolds’s alleged confession.17 General arguments about the propriety of the jury instructions (made on behalf of both defendants) were also included in the brief. One argument that would seem to be dictated by the facts of the case is notably absent from the brief. The fact th at much of the eviden ce presented at trial implicated Curtis, but not Reynolds, could lead to the conclusion that the jury did not properly distinguish the two defendants. Indeed, the stark differences in the incriminating evidence presented at trial w ould likely direct most defense attorneys to precisely this conclusion. The gene ral argument concerning the relative lack of evidence against Reynolds could be e nhanced considerably through specific references to the strength of the evidence ag ainst Curtis. At the evidentiary hearing in the instant case, Hankins conceded th at he considered making the argument that Reynolds was unfairly tainted by the strength of the evidence against Curtis, and that this argument was plausible gi ven the evidence presented at trial. Another argument absent from the four-p age brief concerns the effect thatthe false testimony of Curtis and his mother had upon Reynolds. Curtis’s selfserving statement suggesting that Garritano had appeared at his doorway after the crime occurred permitted the inference th at Reynolds, Harris, and Thomas had committed the crime without his assistance. The fact that Curtis’s mother was held in contempt for corroborating Curtis’s testimony indicates that it was false, as well18 as possibly prejudicial to Reynolds. Hankins admitted that he could have argued that the false testimony of Curtis and hi s mother was prejudicial to Reynolds, and that such an argument would be plausible. The magistrate judge’s Report and Recommendation (adopted in full by the district court) found, as a matter of fact , that “petitioner [failed] to show that counsel could have raised any other issu e that was not raised on appeal.” This cursory finding is belied by the record. Hankins admitted that there were at least two plausible arguments that he could have advanced on Reynolds’s behalf at the motion for a new trial stage, and the reco rd reflects that these arguments were not made in the brief supporting the motion for a new trial. The magistrate judge’s failure to find as a matter of fact that Hankins could have raised these arguments at the post-trial stage amounts to clear e rror given the record that we have. Other than the above, the magistrate judge made no detailed factual findings on the post-trial conflict of interest issue. Given our finding of clear error in the magistrate judge’s determination that Hankins could not have raised additional arguments on Reynolds’s behalf in the post-trial phase, we would ordinarily remand the case to the district court for an application of the Cuyler test. Appropriate application of Cuyler depends heavily on the facts surrounding an19 attorney’s performance, and the district court is the appropriate venue for the resolution of factual questions. However, in this case, we have an ade quate record before us to make remand for more detailed factual findings superfluous. The record provides us with a more than sufficient factual basis to appropriately apply the Cuyler test to the representation Reynolds received in the pos t-trial stages of his case. Remand would waste judicial resources given the sufficiency of this record. See Perkins v. Matthews , 400 U.S. 379, 386-87 (1971) (remand unnecessary when record is adequate to enable reviewing court to d ecide issue on appeal). Indeed, we have previously appliedCuyler without remanding in cases in which the record was clear as to the factual circumstances surrounding an attorney’s actions, even when the district court made no factual findings concerning those actions. See Burden , 24 F.3d at 1303-05 (applying Cuyler test after finding that record demonstrated that attorney negotiated informal plea arrangement to grant one client immunity in exchange for testimony against other, even when district court made no specific factual finding of such). Applying Cuyler to the facts (as reflected in the record) surrounding Reynolds’s post-trial representation, it is clear that Curtis and Reynolds had inconsistent interests both at trial and pos t-trial. The inconsistent interests are20 illustrated by the arguments that Hankins refrained from making at the motion for a new trial stage of the proceedings. Reynol ds could have argued that (a) the jury unfairly failed to distinguish him from Cu rtis, when the evid ence against Curtis, but not Reynolds, was overwhelming, and (b) Reynolds was unfairly prejudiced by the perjurious testimony of Curtis and Curtis’s mother. Hankins declined to make either of these arguments on behalf of Reynolds; indeed, he could not make such arguments without breaching his duty of loyalty to Curtis. This was a truly untenable position for any attorney. Hankins even admitted that, “looking back on it,” he may have had a conflict of interestin the post-trial stage. The import of these facts is that Hankins represented clients with conflicti ng interests, and he declined to advance certain plausible argum ents on behalf of one due to the effect those arguments would have on the other. This circumstance satisfies the “actual conflict” prong of the Cuyler test. Cuyler further requires that a petitioner that has demonstrated an actual conflict show that the conflict “adversel y affected” his lawyer’s performance. Reynolds has demonstrated the requisite adve rse effect that the joint representation had upon Hankins’s performance. Hankins had at least two plausible arguments available to him that could have advanced Reynolds’s case for a new trial. Both of these arguments are reasonable; indeed , they could have added considerable21 context to the vague arguments that were advanced on Reynolds’s behalf in the brief supporting the motion for a new trial. Finally, neither argument could be made because doing so would have prejudi ced Curtis’s interests. Reynolds need not show that the outcome of the pro ceeding would have been different had Hankins made the arguments in question. He merely must demonstrate that his attorney’s conflict of interest had aneffect upon the representation that he received. See Lightbourne , 829 F.2d at 1023 (“Once a defendant satisfies both prongs of the Cuyler test, prejudice is presumed and the defendant is entitled to relief.”) Given the above, it is clear that Reynolds has produced evidence demonstrating that his attorney labored unde r a conflict of interest in the immediate post-trial stage of his case. This conflict rendered Reynolds’s attorney constitutionally ineffective, and Reynolds is entitled to habeas relief granting him the opportunity for new post-trial proceedings.
CONCLUSION In conclusion, Reynolds has shown th at Hankins had a potential conflict of interest in the pretrial stage of the case, as several co-defendants with interests inconsistent with those of Reynolds we re represented by members of Hankins’s law office. Nonetheless, this prospec tive conflict never ripened into an actual22 conflict of interest. Reynolds was never able to identify any action Hankins took (or did not take) at that stage that was influenced by the conflicted loyalties of his office, and therefore could not demonstrate an actual conflict of interest within the meaning of Cuyler

. However, Reynolds has successfully demonstrated that Hankins labored under a conflict of interest in the immediat e-post trial proceedings of his case. The conflict rendered Hankins’s representation of Reynolds constitutionally ineffective at this post-trial stage. Reynolds is entitle d to new post-trial proceedings as a result of this error. Therefore, we affirm the denial of Reynolds’s habeas petition with respect to his claim of constitutional error at the pr e-trial stage of his case. However, we reverse the district court’s denial of his habeas petition with respect to his claim of constitutional error at the post-trial stage of the case, and remand the matter to the district court, with instructions that th e DeKalb County Superior Court be directed to grant Reynolds the opportunity for new post-trial proceedings. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.23 No. 00-12207, Reynolds v. Chapman, et al.

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COX, Circuit Judge, concurring in part and dissenting in part:

I concur in the court’s opinion rejec ting Reynolds’s claim of constitutional error at the pre-trial stage of his case. But I dissent from the court’s conclusion that there was constitutional error at the post-trial stage of the case. I would remand the post-trial claim to the district court for appropriate fact-finding. The magistrate judge, despite recommending that Reynolds’s application be denied, made no findings of historical fact regarding Hankins’s post-trial representation or whether his post-trial performance was hampered by a conflict of interest. While the district court reject ed Reynolds’s post-trial claim, adopting the magistrate judge’s conclusion that Re ynolds had failed to carry his burden of proving either that his attorney had an actual conflict or that his performance was adversely affected by such a conflict, th e court did not engage in further factfinding. What Hankins failed to do post-trial th at he ought to have done, and why he failed to do it, are questions of fact — not questions of law, see Porter v.24 Singletary , 14 F.3d 554, 561 (11th Cir. 1994) — and fact-finding is the job of the district court. Today’s court, ignoring this principle, proceeds to find the historical facts and grant relief. The court finds “adverse effect” from Ha nkins conflict in his failure to make two arguments in support of Reynolds’s motion for a new trial. No remand is necessary, the court concludes, because the facts are “clear.” The facts, however, are not clear to me. It is always reasonable strategy, I suppose, to file a motion for a new trial in a criminal case. But the arguments th e court finds that Hankins should have advanced do not possess much substance. See Freund v. Butterworth , 165 F.3d 839, 860 (11th Cir. 1999) (en banc) (altern ative strategy must possess sufficient substance to be a viable alternative). There were only two defendants on trial, and an argument that the jury did not properly distinguish the two defendants in this case would not impress a trial judge. Similarly, an argument that Reynolds should get a new trial because Curtis and hi s mother perjured themselves in an unsuccessful attempt to exculpat e Curtis is also lacking insubstance. So, the facts are not so clear to me, and the proper disposition of this appeal in my view is to vacate the judgment denying relief on the post-trial claim and remand to the district court for appropriate fact-finding.25