REVISED - March 17, 2000

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20653

PAMELA LYNN PERILLO,

Petitioner-Appellee,

VERSUS

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellant.

Appeal from the United States District Court for the Southern District of Texas March 2, 2000 Before SMITH, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge.

Gary Johnson, the Director of the Texas Department of Criminal

Justice’s Institutional Division, ("the Director") appeals the

district court’s final judgment granting Pamela Perillo’s

petition for habeas corpus relief. The district court

determined that Perillo’s trial counsel labored under an actual

conflict of interest that adversely affected counsel’s presentation

of Perillo’s defense on the issues of both guilt and punishment at

her 1980 trial. The district court therefore vacated the criminal

judgment against Perillo, both as to her conviction and her death

sentence, and ordered that Perillo be released unless the State of

Texas elected to retry her within 120 days of the date upon which

the district court’s decision became final. After an exhaustive review of the unique factual scenario presented in this case, we

affirm.

I.

This is the second time this case has been before our Court

for decision. In March 1996, our Court reviewed Perillo’s appeal

from the district court’s decision granting the Director summary

judgment and denying relief. See Perillo v. State,

(5th Cir. 1996) (Perillo I). In that decision, we determined that

Perillo was entitled to investigate her Sixth Amendment claim

through discovery and an evidentiary hearing narrowly tailored to

address whether trial counsel Jim Skelton’s prior and concurrent

representation of Linda Fletcher, the state’s star witness against

Perillo, created an actual conflict that adversely affected

Skelton’s performance at Perillo’s trial. See

The parties argue that our disposition of this second appeal

is in some measure determined by our prior consideration of this

case. The Director argues that this Court’s focus in the prior

opinion upon particular factual disputes, those relating to

Skelton’s concurrent representation of Fletcher in California,

precludes the district court’s identification of any other facts

that support a finding of actual conflict in the record. We

disagree. As an initial matter, we note that the district court

did not venture far afield of our prior decision; the factual

context relied upon by the district court, the circumstances

surrounding Skelton’s cross-examination of Fletcher at Perillo’s

trial, is in fact raised in our prior opinion. See

.

2 Moreover, this appeal is presented in a different posture and

demands a different standard of review from the first appeal. See

Society of Roman Catholic Church of Diocese of Lafayette, Inc. v.

Interstate Fire & Casualty Co.,

(5th Cir. 1997)

(noting that application of the law of the case doctrine is

inappropriate when the relevant issues are governed by different

standards of review). The prior appeal, which was from summary

judgment without discovery or an evidentiary hearing, presented the

issue of whether there was a factual dispute, which if resolved in

Perillo’s favor, would entitle her to relief. See Perillo I,

. Thus, this Court did not purport to find an actual

conflict of interest or an adverse effect arising from that

conflict. See

. The Court simply focused upon one

factual dispute, which if resolved in Perillo’s favor, would

support relief. The Court did not, and did not need to, try to

identify every factual dispute that could give rise to relief. For

that reason, our prior opinion should not be viewed as foreclosing

the district court’s reliance upon a slightly different factual

context for its determination that Perillo’s counsel Skelton

labored under an actual conflict that adversely affected his

performance.

Perillo argues that the prior opinion is binding to the extent

it constitutes this Court’s reasoned position on presumed facts

that are confirmed by the record on remand. While this argument is

closer to the mark, we take issue with Perillo’s broad suggestion

that we are constrained to afford relief on the force of our prior

3 disposition. The law of the case doctrine is a matter of judicial

discretion rather than judicial power when a court is reviewing its

own prior decision. See United States v. O’Keefe,

(5th Cir. 1999); see also United States v. Castillo,

(5th Cir. 1999), cert. granted ,

(2000).

. Moreover, while we may certainly choose to rely upon our prior

disposition of those factual or legal issues that are either

unaffected by the different procedural posture or unchanged by the

record on remand, those determinations identified by Perillo are

not necessarily determinative of her claim. We therefore review

the district court’s decision granting relief in light of all of

the relevant evidence, including the evidence on remand, and in

light of the standard of review appropriate to the procedural

posture of this appeal.

The present appeal is from the district court’s final judgment

that Perillo demonstrated an actual conflict of interest that

adversely affected Skelton’s presentation of her defense. See

Cuyler v. Sullivan,

(1980). The determinations of

actual conflict and adverse effect are mixed questions of fact and

law, which we review de novo. See Strickland v. Washington,

(1984); Cuyler,

; United States v.

Placente,

(5th Cir. 1996); Perillo I,

. The district court’s underlying factual determinations, which

were made after full discovery and two evidentiary hearings, are

entitled to substantial deference, and should be reversed only if

they are shown to be clearly erroneous. See Strickland,

at 2070; Placente,

.

II.

Perillo’s claim that she was denied her Sixth Amendment right

to effective assistance of conflict-free counsel at trial because

her trial attorney, Jim Skelton, was acting under the influence of

an actual conflict that adversely affected his performance at her

trial is governed by Cuyler v. Sullivan,

(1980) and

its progeny. See Strickland v. Washington,

, 2064-

67 (1984); Beets v. Scott,

(5th Cir. 1995) (en banc).

The Cuyler standard applicable when a criminal defendant alleges

that counsel’s performance was impaired by an actual conflict of

interest differs substantially from the Strickland standard

generally applicable to Sixth Amendment ineffectiveness claims.

See Strickland,

; see also Beets,

. Strickland requires a showing that counsel’s performance was

deficient, in that it fell below an objective standard of

reasonableness, as well as a showing of prejudice, which is defined

as a reasonable probability that counsel’s error changed the result

of the proceeding. See Strickland,

;

Perillo I,

; Beets,

. Cuyler, on the

other hand, permits a defendant who raised no objection at trial to

recover upon a showing that an actual conflict of interest

adversely affected counsel’s performance. See Cuyler,

; Perillo I,

; Beets,

; see

also Strickland,

.

An “actual conflict” exists when defense counsel is compelled

5 to compromise his or her duty of loyalty or zealous advocacy to the

accused by choosing between or blending the divergent or competing

interests of a former or current client. See

;

Perillo I,

; United States v. Alvarez,

(5th Cir. 1978); see also Beets,

(limiting

Cuyler to cases of multiple representation). “Adverse effect” may

be established with evidence that “some plausible alternative

defense strategy or tactic” could have been pursued, but was not

because of the actual conflict impairing counsel’s performance.

See Perillo I,

. Assuming the defendant establishes

an actual conflict that adversely affected counsel’s performance,

prejudice is presumed without any further inquiry into the effect

of the actual conflict on the outcome of the defendant’s trial.

See Strickland,

; Cuyler,

;

Beets,

. “[U]nconstitutional multiple

representation is never harmless error.” See Cuyler,

.

Beyond those basic legal precepts, Cuyler’s “actual conflict”

and “adverse effect” elements have been described as “rather

vague.” See Beets,

. Even a brief review of the

precedent reveals that any categorical treatment of when an actual

conflict exists is difficult. Compare United States v. Olivares,

(5th Cir. 1986) (cross-examination of a state witness

that was also a former client did not give rise to an actual

conflict) with United States v. Martinez,

(5th Cir.

1980) and Alvarez,

(cross-examination of state

6 witness that was also a former client gave rise to an actual

conflict). Instead, the determination of actual conflict and

adverse effect is tightly bound to the particular facts of the case

at hand. See, e.g., Maiden v. Bunnell,

(9th Cir.

1994). For that reason, a fairly lengthy review of the relevant

facts, as enriched by the evidence submitted in the district court

on remand and developed in the district court’s decision, is

essential to our disposition of this case. Except where we have

expressly noted otherwise, we have adopted as without error the

district court’s explicit and implicit fact findings on remand.

III.

A. The Crimes and Perillo’s Statements to Police

More than nineteen years ago, Pam Perillo, Mike Briddle, and

Briddle’s wife, Linda Fletcher,1 were involved in the Houston

murders of Robert Banks and Robert Skeens. The grisly details of

these brutal crimes are reported in detail in Perillo v. State,

(Tex. Crim. App. 1988). Only those facts

relevant to our disposition will be paraphrased here.

Perillo met Briddle and his wife Fletcher in early 1980

through a mutual friend. Shortly thereafter, Perillo, Briddle, and

another man robbed a gentleman who was a customer at the topless

bar where Perillo worked in California. Briddle and Fletcher fled

1 Fletcher’s name at the time of the offenses was Linda Sutton Briddle. She married Fletcher after Briddle’s trial, and later married Guitterez. Linda Sutton Briddle Fletcher Guitterez is most commonly referred to in the record as Linda Fletcher, the name she carried when she testified against Perillo. For ease of reference, this opinion adopts that convention.

7 California in order to avoid apprehension for the robbery. Perillo

learned there was a warrant for her arrest and joined the couple en

route in Tucson, Arizona. The trio found transportation with

various truck drivers and eventually ended up in Houston, Texas.

See

.

On the evening of Friday, February 21, 1980, victim Robert

Banks stopped and offered them a ride. Banks, who was in the

process of moving, also offered to compensate them if they would

help him move. Briddle, Fletcher, and Perillo agreed. That night

the trio stayed with Banks in his newly rented house. The

following day, they helped Banks move some of his belongings, and

then accompanied him to a rodeo. When they returned to Banks’

home, they found Bob Skeens, a friend of Banks’ from Louisiana,

waiting for them. Skeens, who had arrived to help Banks move, was

driving a green Volkswagen. The next morning, Banks and Skeens

went to buy coffee and donuts. While Banks and Skeens were gone,

Briddle and Perillo armed themselves with guns that belonged to

Banks. See

.

When Banks and Skeens returned, Briddle and Perillo pulled the

guns on them and told them to lay down. Skeens immediately

complied but Banks, suspecting a joke, did not. Briddle struck

Banks on the side of the head with the rifle, knocking him down and

causing him to bleed. The victims were then bound with nylon rope.

Skeens’ ankles were later untied, and he was forced to walk to a

back bedroom, where he was rebound. Sometime thereafter, a piece

of rope was wrapped twice around Banks’ neck, and he was strangled.

8 About an hour later, Skeens was killed in the same manner.

Briddle, Fletcher, and Perillo loaded Skeens’ Volkswagen with

property belonging to Banks and Skeens and fled to Dallas, where

they abandoned Skeens’ car in a downtown parking garage and

purchased bus tickets to Denver. Once in Denver, Briddle and

Fletcher checked into one low-rent hotel and Perillo checked into

a different low-rent hotel located nearby. See

On the evening of March 3, about one week after the crimes,

Perillo turned herself in to the Denver police. Perillo then

assisted police efforts to locate and apprehend Briddle and

Fletcher at their Denver hotel. Early the next morning, Perillo

voluntarily gave her statement to the Denver police. In that

statement, Perillo claimed that she and her traveling companions

“Arthur Day,” later identified as Mike Briddle, and “Sheila Davis,”

later identified as Linda Fletcher, planned to rob and then kill

the two victims for money. Perillo also stated that she and

Briddle actually strangled the two victims, and that Fletcher was

not in the room when the two victims were finally murdered.

The next day, Perillo gave a second statement, this time to

Houston police. In her second statement, Perillo claimed that she

committed both murders alone, and that Briddle and Fletcher did not

stumble upon the crime scene until she had successfully subdued,

tied, and strangled both Banks and Skeens. Perillo did not,

however, ever sign the second statement.

9 B. Perillo’s First Trial

Briddle, Fletcher, and Perillo were all charged with capital

murder. Perillo’s confession made hers the state’s strongest

capital case and she was called to trial first. Perillo was

represented by attorneys Robert Scott and William Burge. Perillo

told Scott prior to trial that, contrary to her confession,

Fletcher had participated in Banks’ murder by pulling on one end of

the rope around Banks’ neck. Although Perillo was indicted for

both murders, only Skeens’ murder was submitted to the jury.

Neither Briddle nor Fletcher testified at Perillo’s trial. Perillo

was convicted and sentenced to death. In 1983, the Texas Court of

Criminal Appeals reversed Perillo’s first conviction and death

sentence based upon error committed during voir dire. See Perillo

v. State,

(Tex. Crim. App. 1983).

C. Fletcher’s Trial and Skelton’s Continuing Relationship with Fletcher

Meanwhile, Fletcher prepared for her trial with her attorney

Jim Skelton. Prior to trial, the state offered to let Fletcher

plead guilty to non-capital murder. Skelton declined the plea

offer on Fletcher’s behalf. Eventually, the state reindicted

Fletcher on two counts of aggravated robbery and dismissed the

capital murder indictment. Fletcher proceeded to trial on the two

aggravated robbery counts in October 1980.

At Fletcher’s trial, Skelton’s strategy was to demonstrate

Fletcher’s innocence by placing all the blame on Perillo and

Briddle. Skelton argued that Fletcher came from a good background

10 and was a fundamentally different type of person than either

Briddle or Perillo. Skelton emphasized, for example, that

Fletcher’s family was well-educated, and that Fletcher’s

relationship with Briddle began as the result of some sort of

misguided sociological experiment. Skelton emphasized that both

Perillo and Briddle came from mean circumstances, and that both

Perillo and Briddle had prior criminal records. During closing

argument, Fletcher’s jury was presented with large photographs

intended to dramatically illustrate the difference between the

clean-cut and wholesome Fletcher, on the one hand, and the evil and

hardened Perillo and Briddle, on the other hand. Fletcher did not

testify at her own trial, and the state did not call either

Perillo, whose appeal was pending, or Briddle, who was still

resisting extradition from Colorado. The jury convicted Fletcher

on both counts of aggravated robbery, but Fletcher was sentenced to

only five years probation. Shortly thereafter, Fletcher returned

to her home in California to serve out her probation and obtained

an annulment of her marriage to Briddle.

After Fletcher’s trial, Fletcher and her attorney, Skelton,

stayed in contact with each other by written correspondence and

with telephone calls. Skelton also developed a close relationship

with Fletcher’s mother. In July 1981, when Fletcher planned to

remarry, Skelton was asked to come to California and give the bride

away. Skelton agreed, and traveled to California to spend several

days participating in the wedding festivities with Fletcher’s

family.

11 D. Briddle’s Trial and Skelton’s Continuing Relationship with Fletcher

In May 1981, Briddle was extradited to Texas. While Briddle’s

case was pending, Skelton closely aligned himself with the

interests of the victims’ families. Skelton encouraged the Banks

and Skeens families to contact Fletcher about the crimes in order

to obtain some closure and to explore their theory that there were

more than three people involved in the murders. At Skelton’s

urging and upon his advice, Fletcher spoke with members of the

victims’ families, including Skeens’ grieving mother, who even

traveled to California at one point to meet with Fletcher about the

crimes.

In 1982, when it came time for Briddle’s trial, Skelton was

instrumental in securing Fletcher’s testimony for the state. The

state did not subpoena Fletcher. Rather, Skelton strongly

encouraged Fletcher to volunteer her testimony against Briddle.

Skelton has testified that everyone involved, including Skelton and

Fletcher, wanted to see Briddle get the death penalty. Skelton

instructed Fletcher that she owed it to her country and to the

victims to appear against Briddle.

Skelton then represented Fletcher in her negotiations with the

state concerning her testimony against Briddle. Although Briddle’s

individual prosecutors held the view that Fletcher’s trial on the

lesser included offense of aggravated robbery would preclude her

subsequent prosecution on the capital murder charges, Skelton felt

this was an open legal question, and insisted that Fletcher be

12 granted immunity in exchange for her testimony against Briddle.

The exact type of immunity that Skelton negotiated for

Fletcher’s testimony against Briddle, whether “use” immunity or the

much broader “transactional" immunity, remains unclear. See

Perillo I,

(explaining the difference between use

immunity and transactional immunity). In a prior appeal of this

matter, this Court relied upon a letter from the D.A.’s office that

describes Fletcher’s immunity at Briddle’s trial in a manner

suggesting that only use immunity was being granted. That evidence

was consistent with the Director’s briefing, which stated that

Skelton had negotiated only use immunity in exchange for Fletcher’s

testimony against Briddle. See Perillo I,

. On

remand, however, the basic premise that Fletcher had only use

immunity at Briddle’s trial has been seriously undermined.

Briddle’s trial record reflects that the state entered into a

prosecutorial agreement that Fletcher would receive immunity from

further prosecution in exchange for her testimony against Briddle.

That immunity is characterized in the record as “absolute judicial

immunity for any transactions.” Although Fletcher testified that

an unnamed judge granted the immunity, there is no documentary

evidence that the grant of immunity was ever formalized. The

record reflects that such grants would need to be (1) approved by

District Attorney Johnny Holmes, (2) presented in petition form to

the state trial judge, and then (3) enacted by order of the state

trial court. See Graham v. State,

(Tex. Crim.

App.) (citing Carlisle v. State,

(Tex. Crim. App.

13 1940) for the proposition that a prosecutorial agreement not to

prosecute is not binding absent court approval), cert. denied,

(1999). Moreover, it is evident from the questions

raised by Briddle’s trial judge that the trial court did not have

any documentary evidence demonstrating that Fletcher had been

judicially granted transactional immunity in exchange for her

testimony.

The district court found that the evidence clearly and

unambiguously established that Fletcher was granted full

transactional immunity before her testimony against Briddle. For

the foregoing reasons, we conclude that the evidence is

insufficient to support that factual determination. The evidence

relied upon merely reflects the state’s position: (1) that it did

not intend to prosecute Fletcher, (2) that Fletcher’s prior

conviction for the lesser included offense of aggravated robbery

would have precluded its further prosecution of Fletcher, and (3)

to the extent there was any remaining doubt, that the state had

entered into a prosecutorial agreement to provide Fletcher with

absolute immunity from prosecution for the underlying offenses, by

stating that fact on the record. Despite Skelton’s best efforts,

the record does not definitively reflect that Fletcher

unambiguously enjoyed complete and binding transactional immunity,

as opposed to merely a prosecutorial agreement not to prosecute.

See Graham,

. The conclusion that there

remained some ambiguity as to Fletcher’s status is further

supported by Skelton’s recollection in this proceeding that the

14 state had granted only use immunity with respect to Fletcher’s

Briddle testimony. Without regard to whether Fletcher testified

against Briddle pursuant to use or transactional immunity, the

record is clear and the Director concedes that the agreement

Skelton negotiated for Fletcher would not have protected her from

perjury charges if her testimony was later proven false.

Prior to testifying, and while represented by Skelton,

Fletcher gave a lengthy statement to prosecutors recounting her

version of the events leading up to and following Banks’ and

Skeens’ murders. At Briddle’s trial, Fletcher repeated many of the

details contained in her statement, and was the “State’s chief

witness” against Briddle. Briddle v. Scott,

(5th

Cir. 1995). Fletcher’s testimony added otherwise unknown details

to the body of evidence which virtually ensured the death sentence.

Significantly, Fletcher’s testimony also cast Perillo in an equally

unfavorable light. Fletcher’s testimony highlighted Perillo’s

criminal history and portrayed Perillo as heartless and completely

without remorse. Fletcher testified that it was Perillo who first

suggested killing Banks, and that it was Perillo who repeatedly

brought the subject up, urging Briddle to help her murder Banks.

Fletcher also testified that she was outside in the car when the

murders took place, and that she did not participate in the murders

of the two men.

Skelton appeared at Briddle’s trial as Fletcher’s lawyer.

When Fletcher was called to testify, Briddle’s trial counsel sought

to have Skelton sworn and excluded under the rule. The prosecution

15 argued that Skelton, as Fletcher’s attorney, was exempt from the

rule. Alternatively, Briddle’s trial counsel wanted Skelton

admonished not to discuss the facts of the case with Fletcher. The

defense position was that there was no longer any attorney-client

relationship between Skelton and Fletcher given the conclusion of

Fletcher’s own trial. Both Skelton and the prosecutor objected on

the record. The prosecutor argued that the attorney-client

relationship between Skelton and Fletcher was properly continuing,

notwithstanding the fact there were no pending criminal proceedings

against Fletcher. Skelton likewise argued that he could not be

precluded from discussing the case with Fletcher because she was

his client. Although Skelton was at one point asked to remain

outside, Briddle’s trial judge changed course in response to

Skelton’s and the prosecution’s objections, and there is no

indication that Skelton left the court room at that time.

While Fletcher was in Houston to testify for the state against

Briddle, she stayed with Skelton for between seven and ten days in

his one bedroom condominium. Fletcher stayed past the time that

her testimony was complete, and did not return home until the

verdict against Briddle was in. Briddle was sentenced to death and

has since been executed. Fletcher has testified that she was

“pleased” with the result of Briddle’s trial.

E. Perillo’s Second Trial and Skelton’s Continuing Relationship with Fletcher

1. Skelton’s Concurrent Representation of Fletcher During Perillo’s Second Trial

Eventually, Perillo’s case was scheduled for retrial. The

16 court appointed attorney Robert Pelton to represent Perillo.

Pelton had never tried a capital case before, but he ran several

machine shops with a more senior lawyer, Jim Skelton. Pelton asked

Skelton to join Perillo’s defense, and in November 1983, Skelton

was likewise appointed to represent Perillo. Skelton’s first

instinct upon being appointed was to call Fletcher to “alert her”

that he would be handling Perillo’s case.

Skelton did not similarly “alert” Perillo concerning the

circumstances of his prior representation of Fletcher. In

particular, Perillo was not made aware that Skelton’s strategy at

Fletcher’s trial was to pin the blame on Perillo and Briddle and to

develop evidence making them look as bad as possible, that Skelton

had an ongoing personal friendship with Fletcher of such a nature

that Skelton gave Fletcher away at her wedding, that Skelton had

aligned himself with the victims’ interests and encouraged Fletcher

to meet with the victims to answer their questions about the

crimes, that Skelton had negotiated a grant of immunity for

Fletcher in exchange for Fletcher’s damaging testimony against

Briddle, that Skelton continued to represent Fletcher during

Briddle’s trial, or that Fletcher’s preserved testimony at

Briddle’s trial alleged new and damaging details about Perillo’s

own conduct. To the contrary, Perillo knew nothing more than that

Skelton had secured a very favorable sentence for Fletcher and that

she hoped he would be able to do the same in her case.

Jury voir dire began in Perillo’s second trial on October 8,

1984. On October 19, 1984, Perillo’s trial judge issued a subpoena

17 to compel Fletcher, who was still living in California, to return

to Texas. Once again, Skelton’s first impulse was to call Fletcher

to alert her about the subpoena. Fletcher did not want to testify

because she wanted to “put all this” behind her. She asked Skelton

to come to California to represent her in her efforts to quash the

subpoena. Skelton left, during the pendency of Perillo’s trial,

and went to California at Fletcher’s request. While in California,

Skelton went to Fletcher’s home to meet with Fletcher and her

husband about Fletcher’s potential testimony.

Skelton and Fletcher have testified consistently that Skelton

was providing legal counsel to and representing Fletcher in the

California hearing. Skelton argued on Fletcher’s behalf that she

should not have to return to Texas. Fletcher testified that it

occurred to her at the time that Skelton might be in a conflict of

interest situation based upon his prior representation of her at

trial and his concurrent representation of she and Perillo in

California. Fletcher further testified that she at no time had the

impression that Skelton was in California to represent Perillo.

Rather, she considered him to be there as her lawyer.

Perillo’s prosecution team filed documents in support of the

subpoena, including a statement prepared by the state trial court

judge that Fletcher’s testimony was considered necessary in

Perillo’s case. Fletcher has testified that she believed at the

time of the California hearing that she could still be prosecuted

if she were to return to testify against Perillo. The state

prepared correspondence stating that, if Fletcher would return to

18 testify against Perillo, the state would “again” seek a grant of

transactional immunity in exchange for her testimony. Although

there is no record evidence suggesting that Skelton, or even

Fletcher, negotiated that renewed grant of immunity, the offer of

renewed immunity was made at a time when Skelton was simultaneously

representing Fletcher and Perillo. Without regard to which grant

of immunity (the Briddle immunity or the Perillo immunity) was

controlling, the record is clear that Fletcher could have been

prosecuted for perjury if her testimony were proven materially

false.

The record reflects that when prosecutors went looking for the

previous grant of transactional immunity relative to Briddle’s

trial, they were unable to find it. The record further contains:

(1) a written request that immunity be granted, which is signed by

district attorney Johnny Holmes, and (2) court pleadings

petitioning the court for an order granting Fletcher immunity. The

court pleadings are not, however, signed by any judicial authority.

See Graham,

. As a consequence, the technical

status of Fletcher’s immunity when she returned to testify against

Perillo is likewise unclear. At a minimum, however, Fletcher was

the beneficiary of a prosecutorial promise not to prosecute that

arose either from Skelton’s negotiation of Fletcher’s immunity

before the Briddle trial, or from the state’s renewed offer of

immunity at a time when Skelton was representing both Fletcher and

Perillo in California.

The California court ordered Fletcher to testify, and Skelton

19 did not appeal or otherwise challenge that ruling. Skelton views

his concurrent representation of Fletcher and Perillo as without

conflict because Perillo likewise had an obvious and compelling

interest in keeping Fletcher in California. The record reflects,

however, that the California order directing Fletcher’s return, and

indeed the state’s request for Fletcher’s return, did not pose any

difficult issues. Indeed, Perillo’s prosecutors testified in this

proceeding that, where the state was paying for her return, the

state was confirming the availability of immunity, and Fletcher was

a direct witness to the events leading to a capital murder, the

California order directing her return was expected, and indeed

almost pro forma.

The apparent inevitability that Fletcher would be ordered to

return raises a serious question about the extent to which Perillo,

as opposed to Fletcher, would even potentially be benefitted by

Skelton’s services in California. Moreover, that apparent

inevitability should have brought home to Skelton the fact that his

two clients’ interests, should Fletcher be ordered to return, would

rapidly diverge. Fletcher’s primary interest would be in avoiding

further prosecution. To do so, she would need to testify in a

manner consistent with the damaging details revealed in her Briddle

testimony in order to avoid being charged with perjury or

invalidating the immunity agreement that was either negotiated by

Skelton or secured while he represented her. Perillo would need to

undermine Fletcher’s credibility and impeach Fletcher’s testimony

by any means possible, in order to minimize the effect of

20 Fletcher’s damaging testimony. Perillo would also need to

emphasize Fletcher’s own involvement in order to highlight the

disparity between Fletcher’s punishment of five years probation and

a potential death sentence in Perillo’s case.2

2. Fletcher’s Testimony Against Perillo

Fletcher returned to Houston to testify against Perillo on

November 5 or 6, 1984. Although Fletcher initially stayed at a

hotel arranged by the state, she moved to Skelton’s condominium

shortly thereafter, and stayed with Skelton throughout the duration

of Perillo’s trial.

On the afternoon that Fletcher arrived in Houston, Skelton

arranged to have her meet with another criminal defense attorney,

Will Gray, with whom Skelton shared office space. Skelton has

2 The district court made several fact findings with regard to Skelton’s agreement to represent Fletcher in California during the course of Perillo’s trial and after Fletcher had been named as a potential witness for the state. Specifically, the district court found that Skelton went to California, with Perillo’s knowledge, primarily for the purpose of representing Perillo’s interests, and only coincidentally to represent Fletcher’s interests. The district court also held that Perillo’s and Fletcher’s interests with respect to Skelton’s concurrent representation in California were identical because both women wanted to avoid the subpoena for Fletcher’s testimony at Perillo’s trial. We are unable to affirm the district court’s factual determinations on these issues. While Perillo knew Skelton was going to California, she did not know the true character of Skelton’s prior representation of Fletcher and did not understand the potential for conflict should Fletcher be ordered to return. Further, although both Fletcher and Perillo wanted to avoid the subpoena, they wanted to do so for different reasons. The record demonstrates that the possibility of avoiding the subpoena was small and the risk of an ensuing conflict should Fletcher be ordered to return was large. We therefore reject the district court’s determination that Fletcher and Perillo’s interests with respect to the California proceedings were identical.

21 testified that the sole purpose of this consultation was to seek

Gray’s advice concerning whether the attorney-client relationship

that had existed between Skelton and Fletcher might be used in some

manner to exclude or limit the effect of Fletcher’s testimony

against Perillo. Skelton denies that Gray was consulted regarding

any conflict of interest arising out of his prior and concurrent

representation of Fletcher.

Fletcher only met with Gray once, on the afternoon before she

began her testimony against Perillo on November 7, 1984. Skelton

dropped Fletcher off and picked her up from the meeting. Gray has

testified that his meeting with Fletcher left him thinking that

there was a distinct possibility that Fletcher would be charged

with perjury unless she asserted the attorney-client privilege at

Perillo’s trial. Gray was also concerned about the conflict of

interest arising from Skelton’s simultaneous relationship with both

Fletcher and Perillo. After meeting with Fletcher, Gray told

Skelton that Skelton should withdraw from Perillo’s case. Gray

agreed, however, to appear on Fletcher’s behalf when she testified

the next day.

That night Skelton and Fletcher returned to Skelton’s

condominium alone and had a lengthy conference during which Skelton

refreshed Fletcher’s recollection of her testimony against Briddle

by going through her prior testimony, which Skelton characterized

as “set in stone,” with Fletcher. Skelton also “mapped out” for

Fletcher exactly what he intended to ask her during his cross-

22 examination of her at Perillo’s trial the next day. Gray,

Fletcher’s putative attorney, was not present for this briefing

session.

Skelton claims that this evening conference at his home was

the first time he ever discussed Fletcher’s version of the facts

with her. Skelton claims he did not discuss the facts of the case

against Fletcher with her before or during her own trial, when

referring the victims’ families to her, when he attended at her

wedding, when he negotiated Fletcher’s immunity for Briddle’s

trial, when Fletcher gave a statement to prosecutors detailing

those facts before Briddle’s trial, when she stayed with him for

more than one week during Briddle’s trial, when he appeared on her

behalf at Briddle’s trial, when he represented her in California

during the course of Perillo’s trial, or at any other time prior to

that evening. Skelton’s testimony in this regard is, as the

district court ultimately found, both incredible and contradicted

by other evidence.

Without regard to whether Skelton discussed the facts of

Fletcher’s case with her prior to the evening before her Perillo

testimony, Skelton concedes that he did discuss the facts with

Fletcher that evening. Thus, Skelton met with Fletcher, the

state’s star witness, the night before she testified against

Perillo for the purpose of permitting Fletcher the opportunity to

conform her testimony against Perillo to her prior, and very

damaging, testimony in Briddle’s trial, and for the purpose of

affording Fletcher a preview of Skelton’s cross-examination on

23 Perillo’s behalf. The record reflects that several individuals

were concerned about the conflict of interest problems presented by

Skelton’s dual relationship with both Fletcher and Perillo. In

addition to Gray, there is evidence that Perillo’s prosecutors were

concerned about the conflict of interest arising out of Skelton’s

dual relationship with Fletcher and Perillo. As mentioned above,

there is evidence that Fletcher was concerned about a conflict of

interest. Finally, there is evidence that Skelton himself was

concerned about the conflict of interest arising from Skelton’s

relationship with both Fletcher and Perillo. Skelton asked

criminal defense attorney Will Gray, who had extensive experience

defending capital cases, to consult with Fletcher. Although

Skelton testified that Gray’s consultation was exclusively for the

purpose of seeing whether Fletcher’s testimony could be excluded

altogether, both Gray and Fletcher testified that Gray was supposed

to consult with Fletcher about any actual conflict that might

infringe upon her rights, given Skelton’s representation of both

Fletcher and Perillo.

Notwithstanding Gray’s advice, Skelton continued with

Perillo’s case, and the next day Fletcher appeared to testify

against Perillo. Although not introduced during the evidentiary

hearing on remand, the record contains sworn affidavits from two

individuals, one a member of the bar, stating that they were either

party to or overhead a conversation during Perillo’s trial in which

Skelton said that he had advised Fletcher to lie in Briddle’s

trial, and that Fletcher would therefore be compelled to repeat her

24 lies in Perillo’s trial, although Skelton planned to spin

Fletcher’s lies in a way that would help Perillo.3

Once Fletcher was called to the stand, the state asked

Fletcher some questions which the prosecutor has subsequently

testified were intended to address the issue of whether Skelton’s

representation of Perillo was burdened by a conflict of interest

arising from his relationship with Fletcher. Fletcher testified

that there was no longer any attorney-client relationship between

her and Skelton. Gray then interjected, stating that he

represented Fletcher, that Fletcher had been granted immunity for

her testimony, and that the extent of his counsel to Fletcher was

that she assert the attorney-client privilege where applicable.

Gray was never formally appointed to represent Fletcher. Once

Fletcher began testifying, and it became clear that she would not

follow Gray’s advice to assert her attorney-client privilege, Gray

left the courtroom, and did not stay to hear Fletcher’s testimony

or to otherwise protect her interests. There is no indication that

Gray ever had any other contact with or exposure to Fletcher. Gray

has testified in this proceeding that he feels there was an actual

conflict arising from Skelton’s multiple representation of both

Fletcher and Perillo. While Gray does not ascribe any improper

motive to Skelton in doing so, Gray believes that Skelton

inappropriately “got caught up in trying to serve two masters.”

Tellingly, neither the prosecutors nor Gray nor Perillo’s

3 One of those witnesses testified that Skelton also claimed to have procured a “phony annulment” for Fletcher so that she could testify against her former husband, Briddle.

25 trial judge elicited from Fletcher the full scope of Fletcher’s

relationship with Skelton. Although the fact of Skelton’s prior

representation at Fletcher’s trial was stated in the record, no one

questioned Fletcher about Skelton’s representation after Fletcher’s

trial, at Briddle’s trial, or after Perillo’s trial began. Those

facts were simply not developed, leaving both Perillo’s trial judge

and Perillo herself in the dark. Skelton did not, as he had for

Fletcher, arrange for Perillo to consult with any independent

counsel regarding the existence of a conflict of interest. Indeed,

neither the trial judge nor the prosecutors nor Skelton expressed

any interest in determining whether Perillo was aware of Skelton’s

relationship with Fletcher or whether Skelton’s dual relationship

with both Fletcher and Perillo might have any conflict of interest

implications that would impair Skelton’s presentation of Perillo’s

defense.

On direct, Fletcher repeated the damaging testimony given at

Briddle’s trial. Fletcher’s testimony tended to establish both

Perillo’s guilt and her future dangerousness by describing

extraneous offenses that were neither contained in Perillo’s

confession nor otherwise offered into evidence by the state.

Fletcher’s testimony also tended to establish that Perillo was

heartless and cruel. For example, Fletcher testified that Perillo

used a tape recorder taken from Banks’ house to make mocking

recreations of the murders. Fletcher also elaborated on her

earlier Briddle testimony without objection from Skelton. For

example, Fletcher testified at Perillo’s trial, but not at

26 Briddle’s trial, that Perillo had calmly demanded her share of the

money from the robbery as the trio fled Houston. Fletcher also

elaborated on her testimony that Perillo was using Banks’ tape

recorder on the bus to Denver by testifying that Perillo was making

statements like “the rope is too tight,” and “I don’t like looking

at your face, its turning blue” while Briddle laughed.4 There can

be little doubt that Fletcher’s testimony was “most damaging” to

Perillo. Perillo,

.

On cross-examination, Skelton’s continuing obligation to

Fletcher, arising in part from his role in securing Fletcher’s

damaging Briddle testimony and the grant of immunity in her favor,

and as complicated by his decision to refresh Fletcher’s

recollection of her prior testimony and his decision to preview his

cross-examination with Fletcher, obviously hindered Skelton’s

ability to challenge or minimize Fletcher’s testimony in any

meaningful way. Skelton led Fletcher through her testimony so

consistently that the transcript reads as though Skelton himself is

testifying. Throughout the lengthy cross-examination, Fletcher

gave predominantly one word responses to the lengthy, compound

questions posed by Skelton.

Skelton began by going through some of the lengthy history of

his personal and professional relationship with Fletcher. Skelton

4 The district court found that Fletcher gave “substantially the same testimony that she had given at the trial of Briddle.” While we do not necessarily disagree with that finding, we do find some significance in the fact that Fletcher’s testimony at Perillo’s trial included damaging new details that came in unchallenged by Skelton.

27 disclosed that Fletcher had received a five year probated sentence

for her involvement in the crimes. Skelton diminished Fletcher’s

own involvement by pointing out that Perillo’s own statements “left

[Fletcher] out of it.” Skelton identified himself and Fletcher

with both the government and the victims’ families by eliciting her

testimony that she volunteered her testimony at Briddle’s trial

because it was the right thing to do and that, at his urging, she

had met with the victims’ families. Skelton bolstered Fletcher’s

credibility by eliciting testimony about her excellent background,

including her well-educated sisters, her supportive family, and

even her high school grade point average.

Skelton then proceeded to Fletcher’s version of the facts.

Fletcher repeated much of the damaging testimony given on direct.

Skelton failed to ask questions that might have impugned Fletcher’s

credibility or exposed any ulterior motives for her testimony,

although he could have fruitfully pursued both avenues. See

Perillo I,

n.12. Skelton failed to point out that

Fletcher’s prior statement to Denver police that she had last seen

Banks alive and well when he dropped her off on the freeway was

inconsistent with her testimony at Perillo’s trial. See

Skelton failed to point out that Fletcher might hold a grudge

against Perillo because Perillo turned both Fletcher and Briddle in

to the police. See

Skelton failed to explore the import of

Fletcher’s desire to “put all this” behind her, which might have

included a motive to eliminate the one remaining person who could

remind her of and shed light upon Fletcher’s own involvement in the

28 murders. Skelton also failed to ask Fletcher questions that would

have incriminated her, or at least called into question whether she

was more involved in the murders than she claimed. For example,

Skelton failed to ask Fletcher about the fact that she had blood on

her pants when she was arrested. See id.5

Notwithstanding the fact that Skelton previewed his cross-

examination with Fletcher the night before, he also asked questions

that tended to incriminate Perillo. For example, Skelton’s cross-

examination elicited damaging evidence of Perillo’s involvement in

a host of extraneous offenses not otherwise developed by the state.

For example, Fletcher testified that Perillo was heavily

involved with drugs, and that Perillo generally helped Briddle with

his “robberies.” Fletcher also offered new details with regard to

the robbery that led the trio to flee California.

Skelton also elicited false testimony from Fletcher that

operated to prejudice Perillo’s defense. For example, Fletcher

testified that she did not receive any benefit from the state in

exchange for her testimony against Briddle. As developed supra,

Fletcher received at least use immunity, and probably full

5 Skelton also failed to clarify misleading testimony concerning the fact that the only usable print recovered in the course of the investigation was Fletcher’s fingerprint, leaving the jury to conclude instead that the print belonged to Perillo. The district court chose not to rely upon this factor in its decision, stating that the record did not support the premise that the print evidence provided a basis for cross-examination of Fletcher. While we find some significance in Skelton’s failure to clarify the misleading testimony, we cannot say that the district court’s resolution of this factual issue is clearly erroneous. For that reason, we will exclude consideration of this factor in our decision.

29 transactional immunity, in exchange for her testimony against

Briddle. In addition, Skelton elicited testimony from Fletcher

that he was not present when she appeared at Briddle’s trial, a

statement that is flatly contradicted by the record in Briddle’s

case. Skelton has testified that his trial strategy was to try and

make both Fletcher and Perillo look like victims who were being

manipulated by an evil and controlling Briddle. Skelton planned to

compare Fletcher’s outstanding background with her despicable

conduct when married to Briddle in order demonstrate the strength

of Briddle’s influence. But Skelton elicited testimony that was

both damaging to Perillo and inconsistent with his stated strategy.

For example, Fletcher testified that she was crying and visibly

distraught throughout the time the robbery and murders were taking

place. But, notwithstanding the fact that Skelton previewed his

cross-examination with Fletcher, Skelton elicited Fletcher’s

testimony that Perillo was calm and “methodical” (Skelton’s word)

during the offenses. Similarly, Fletcher testified that Briddle

forced her to engage in prostitution for his benefit and that he

frequently beat her when she tried to refuse. Fletcher then

testified that Perillo refused to engage in prostitution for

Briddle’s benefit without consequence, and that Briddle never

attempted to harm Perillo.

Perillo’s prosecutors have testified that they were worried

that Fletcher’s testimony on cross-examination that she received

only a five year probated sentence might influence the jurors to

likewise impose a lighter sentence than death on Perillo. This is

30 the prosecutors’ attempt to make Skelton’s approach to Fletcher’s

cross-examination seem wise, or at least professionally reasonable.

But as Perillo’s counsel pointed out in the evidentiary hearing,

any strategy to highlight the light sentence Fletcher received by

comparison can only have been strengthened by a vigorous cross-

examination calling into question whether Fletcher was in fact more

involved in the offenses than she pretended. The fact that both

women pulled on the rope that killed Bob Banks could only have

added to the obvious disparity between the five year probated

sentence in Fletcher’s case and the death penalty being sought in

Perillo’s case. Such evidence would also have furthered Skelton’s

stated trial strategy by strengthening the contrast between

Fletcher’s background and her conduct under the influence of

Briddle.

Perillo claims, and neither Skelton nor his co-counsel Pelton

disputes, that she made a contemporaneous and vociferous objection

to counsel when Skelton was cross-examining Fletcher at trial.

Perillo claims she told both Skelton and Pelton that Fletcher was

lying and that Fletcher was inaccurately portraying Perillo as the

ringleader to cover her own more substantial involvement. As just

one example, Perillo testified in the evidentiary hearing that,

contrary to her prior confessions, Fletcher pulled on one end of

the rope that strangled Bob Banks. The fact that she did not make

this theory up for habeas review is corroborated by the testimony

of Robert Scott, who represented Perillo at her first trial. Scott

testified that Perillo told him the same story about Fletcher’s

31 active involvement prior to her first trial.

Perillo claims that she asked Skelton to cross-examine

Fletcher about her lies, but Skelton refused. He just patted

Perillo’s hand and told Perillo it would be okay. Perillo also

says that she told her lawyers she wanted to testify in order to

clarify for the record that Fletcher was lying. Perillo claims

that Skelton and Pelton refused to allow her to testify. Skelton

told Perillo that it was important for Fletcher to testify in a

manner that was consistent with her Briddle testimony. The

acrimony arising from these events and others is evidenced in

Perillo’s trial record, which includes Perillo’s post-trial and pro

se motions to remove Skelton and Pelton from her case.

Skelton called only one witness during the guilt phase of

Perillo’s trial. Skelton called Houston Police Officer West, who

took Perillo’s second and unsigned statement, in which she claimed

that she committed both murders alone. Perillo’s second, unsigned

statement was recognized as inadmissible and therefore not

introduced at Briddle’s trial. Prior to West’s testimony for the

defense, Perillo’s second statement had not been introduced into

evidence or otherwise discussed at Perillo’s second trial. Skelton

asked Officer West a few questions to establish that he took the

statement and then, inexplicably, had Officer West read the entire

lengthy statement, which was highly incriminating as to Perillo and

equally exculpatory as to Fletcher, verbatim into the record.

West’s testimony was the last evidence received before closing

arguments and submission to the jury.

32 At the close of evidence in the guilt phase, Skelton told the

jury that defending Perillo was one of the most difficult jobs he

has ever had to do because of his close relationship with the

victims’ family, and because of the horrendous and disturbing

brutality of the crimes. Skelton told the jury that his hair stood

on end when he read the state’s file, and found out the trio began

planing the offenses the night before the crimes while at the rodeo

with Banks.6 Not surprisingly, the jury returned a verdict of

guilty.

During the punishment phase, the state called the victim of

the California robbery, and two police officers who testified that

Perillo’s reputation for peaceableness was bad. Skelton and Pelton

called numerous witnesses who testified to Perillo’s pitiful family

background, Perillo’s religious conversion in prison, and Perillo’s

prospects for support from the community should she be spared the

death penalty. In his closing argument, Skelton told the jury that

he cared a great deal about the victims in this case, as evidenced

by the fact that he was responsible for securing the testimony that

ensured Briddle received the death penalty. Skelton told the jury

that the sole issue in Perillo’s trial had always been punishment,

rather than guilt. Skelton emphasized that Perillo was remorseful,

and that she deserved some credit for turning the trio in to the

police. Skelton closed with a plea for mercy. Thereafter, the

6 We note that the only source of that information would have been Fletcher’s pretrial statement or her testimony at Briddle’s trial, which Skelton claims he never read or reviewed until the night before Fletcher testified.

33 jury returned affirmative answers to the two special issues

required for imposition of the death penalty.

Skelton has testified that there was no conflict of interest

arising from his dual relationship with both Fletcher and Perillo

because Fletcher would have done anything, even lied on the stand,

to help Perillo. But Fletcher’s own testimony in this proceeding

contradicts that premise; Fletcher has testified that she was

“pleased” with the outcome of Perillo’s trial and does not care

whether Perillo gets the death penalty. Fletcher’s candid

admission of her point of view tends to support Perillo’s belief

that Fletcher’s testimony was intended to and did secure her

conviction and condemn her to death.

F. Perillo’s Direct Appeal and State Habeas Proceeding and Skelton’s Continuing Relationship with Fletcher

Perillo’s conviction and sentence were affirmed on appeal.

See Perillo v. State,

. In November 1991, Perillo

filed a state habeas corpus action in the convicting court.

Skelton continued to represent Fletcher during the course of

Perillo’s state habeas proceeding. In 1992, Perillo’s habeas

counsel attempted to contact Fletcher to investigate the facts

surrounding Skelton’s representation of Fletcher. Fletcher

initially agreed to an interview, but then canceled on the advice

of her counsel, Skelton. Fletcher told Perillo’s habeas counsel

that all future communications had to go through Skelton, and that

if necessary, Skelton would fly to California to resist any

subpoena for Fletcher’s testimony. Skelton never responded to

Perillo’s habeas counsel’s attempts to contact him directly.

34 In January 1994, the state court judge, who was not the judge

who presided at Perillo’s trial, entered written findings of fact

and conclusions of law, recommending denial of Perillo’s writ. The

state habeas court’s disposition relied heavily upon the

credibility of Skelton’s affidavit testimony. Perillo’s state

habeas petition was later denied by the Texas Court of Criminal

Appeals in an unpublished per curiam opinion. See Ex parte

Perillo, No. 26,367-01 (Tex. Ct. Crim. App. 1994).

The state habeas court did not conduct an evidentiary hearing,

and decided the case instead on the basis of the affidavits and

other documents submitted to the court. See Perillo I,

. We have already determined that Perillo did not receive a

full and fair hearing on her Sixth Amendment claim in the state

habeas court. See

at 445-46 & n.7 (explaining the significance

of the “paper” hearing in Perillo’s case with respect to the

presumption of correctness to be accorded the state court fact

findings). The evidence received on remand, particularly the

evidence relating to Skelton’s credibility, strongly supports that

legal conclusion. Further, the procedural posture of this present

appeal does not affect our prior resolution of that legal issue.

We therefore adhere to our earlier holding that, on the particular

facts of this case, the state habeas court’s fact findings are not

entitled to the presumption of correctness provided for in the pre-

AEDPA version of

(d).

35 G. Perillo’s Federal Habeas Corpus Petition and Skelton’s Continuing Relationship with Fletcher

Perillo filed this, her first federal habeas, on May 4, 1994.

Perillo’s petition is controlled by pre-AEDPA law because it was

filed before the effective date of AEDPA, see Lindh v. Murphy,

(1007), and because Texas has not opted into the

separate provisions of AEDPA making the statute retroactive for

death penalty cases, see Green v. Johnson,

(5th

Cir. 1997). In August 1994, without permitting discovery or an

evidentiary hearing, the district court granted summary judgment in

favor of the Director and denied relief. The district court’s

disposition of Perillo’s claim, like that of the state habeas

court, relied heavily upon the credibility of Skelton’s affidavit

testimony. Perillo appealed.

1. The Prior Appeal

On appeal, this Court was particularly concerned about the

fact that Perillo had not been given an opportunity to develop her

claim, either in the state habeas court or the federal habeas

court. We noted that “Perillo has not had the opportunity to

depose or cross-examine Skelton. Perillo has not even been able to

get Fletcher’s affidavit.” Perillo I,

. We were

also disturbed by the fact that Skelton continued to be “Perillo’s

chief obstacle in obtaining information from Fletcher,” as well as

by the tone of Skelton’s vitriolic and unprofessional affidavits.

Id.7

7 We quoted only a small portion of Skelton’s affidavit testimony in our prior opinion. See Perillo I,

n.4.

36 Perillo argued that Skelton’s prior and concurrent

representation of Fletcher gave rise to an actual conflict that

adversely affected Skelton’s interests, either during Skelton’s

concurrent representation of Fletcher in California or during

Skelton’s cross-examination of Fletcher at Perillo’s trial. We

agreed, holding that Perillo had not received a full and fair

hearing of her claim in the state habeas court, see Perillo I,

-46 & n.7, and that Perillo had alleged facts which, if

proven true, would entitle her to relief, see

.

Accordingly, we vacated the judgment of the district court and

remanded for discovery and an evidentiary hearing. See

.

2. Proceedings on Remand

a. The first evidentiary hearing and decision

The district court held its first evidentiary hearing on

November 25 and 26, 1996. The Court heard evidence from Skelton,

Fletcher (by video), Scott (Perillo’s counsel at her first capital

murder trial), Gray (Fletcher’s putative counsel for conflicts at

That excerpt was by no means the most callous portion of his affidavit testimony. But Skelton’s affidavit, for all its crude language, reveals a good bit about Skelton’s conflicted position at Perillo’s trial. Skelton states that Fletcher’s testimony was “set in stone,” and that it was important that she testify consistently at Perillo’s trial, without omitting any of the facts that might hurt Perillo’s case. Skelton describes Fletcher affectionately as being “very popular” and the “clown” of an upstanding middle class family. Skelton emphasizes that Fletcher was never in trouble with the law prior to her affiliation with Briddle, which only occurred as the result of a misguided college project. Skelton describes Perillo and her participation in the offenses, on the other hand, in the coarsest possible terms, stating, for example, that “[t]hinking that impeaching Linda would save Perillo makes as much sense as attempting to convince the jury that the rope accidentally ‘went off,’ flew across the room, and strangled both men to death.”

37 Perillo’s trial), Perillo, Bill Warren (Perillo’s expert on

conflict law), Pelton (Skelton’s co-counsel for Perillo’s second

capital murder trial), Crowley (lead prosecutor for Perillo’s

second capital murder trial), and Gotshall (junior prosecutor for

Perillo’s second capital murder trial), all of whom testified to

the facts developed supra. In addition, both sides offered a

substantial amount of documentary evidence in the form of exhibits.

Skelton repeated his affidavit testimony that there could be

no actual conflict because Fletcher wanted to help Perillo, and no

adverse effect because demonstrating Fletcher’s culpability in the

crime, i.e. “that Linda was a lying California bitch who tugged on

the rope with Perillo,” would not have saved Perillo from the death

penalty. Skelton’s basic premise was that the quality of his

advocacy was immaterial because Perillo’s confession was

insurmountable. Post-hearing briefs were filed by both parties.

On August 5, 1997, the district court entered an order denying

habeas relief. The district court relied heavily upon Skelton’s

testimony, expressly finding that Skelton’s testimony was credible.

The district court further agreed with Skelton that no “amount of

hostility toward or discrediting of Fletcher could have diminished,

much less neutralized, the compelling force of Perillo’s own

confession.” In so holding, the district court seems to have

confused Strickland’s standard, which requires a showing of actual

prejudice with respect to the outcome of the trial and Cuyler’s

less stringent standard, which places the focus upon whether

38 counsel’s performance was compromised by an actual conflict of

interest.

2. The second evidentiary hearing and decision

On August 19, 1997, Perillo filed a motion to reopen the

evidence and for reconsideration. The primary issue at this point

was Skelton’s credibility. Skelton’s credibility was key to such

important issues as whether Fletcher had in fact conveyed any

confidential information to Skelton when he represented her, and

whether Skelton knew that Perillo’s version of the facts implicated

Fletcher in the actual murders, a fact which might have aided

Perillo’s defense, but would almost certainly have opened Fletcher

up to perjury charges. Perillo pointed out that Skelton’s

testimony conflicted with that of other witnesses, including Robert

Scott and Will Gray, and with documents admitted into evidence.

Perillo also pointed out that Skelton was disbarred for lying to a

client the day after the district court’s decision relying upon

Skelton’s credibility to deny relief.

Perillo tendered evidence that Skelton’s August 1997

disbarment resulted from his decision to lie to a client about the

status of the client’s criminal appeal from federal conviction.

Unfortunately for Skelton, the client tape recorded Skelton’s

assertions that the client’s appeal was pending, that Skelton had

presented oral argument to an interested Fifth Circuit panel, and

later, that the client’s conviction had been affirmed on appeal.

In fact, the client’s appeal had been dismissed for want of

prosecution months before Skelton began telling the client about

39 the fictitious oral argument and affirmance. There are tape

recordings of these conversations in the record. Even when the

client confronted Skelton about the appeal being dismissed months

before, Skelton told the client he had attended oral argument and

that some unidentified lawyer named “Greg” must have dropped the

ball. Perillo argued that the newly discovered evidence was highly

probative with respect to Skelton’s credibility. Perillo also

reargued her substantive arguments for relief.

In March 1998, the district court granted Perillo’s motion to

reopen the evidence and for reconsideration. In the same order,

the district court vacated its earlier judgment denying relief.

The district court again granted discovery and set a second

evidentiary hearing for May 21, 1998. At this hearing, Skelton

admitted that he lied to his client about the appeal made the

subject of the disciplinary proceedings against him. The two tape

recorded conversations were played. Skelton also testified that

there are times when you cannot be truthful with a client. Skelton

had previously testified to the same effect in another disbarment

proceeding, in which Skelton offered testimony defending another

lawyer who delayed telling a criminal defendant that charges had

been dropped for a number of months to keep leverage over the

client for the collection of a fee. Skelton’s testimony

established that his license had been reinstated, pending final

disposition of the disciplinary proceedings.8 The hearing ended

8 Skelton has since been permanently and finally disbarred by the Texas State Bar because of conduct giving rise to two different complaints against him, the oldest of which dates back to

40 with the arguments of counsel relating to the relative importance

of Skelton’s credibility.

This time there were no post-hearing briefs, and on June 18,

1998, the district court entered a final judgment vacating

Perillo’s conviction and her death sentence. The district court

found:

Skelton’s credibility is questionable. During his testimony in this proceeding he admitted to and defended his practice of sometimes lying to his clients. One such episode, which he attempted to explain but did not defend, is the basis for current State Bar disciplinary proceedings against him, in which his disbarment has been sought.

The district court phrased its findings to express doubt about the

veracity of Skelton’s representations that he never spoke to his

client Fletcher about the facts of her case at her trial, or when

he negotiated immunity for her during Briddle’s trial, or when she

returned to testify against Briddle and stayed in his home, or at

any other time prior to the evening before her testimony in

Perillo’s second trial. The district court further noted the

substantial personal relationship between Skelton and Fletcher,

“that had arisen out of Skelton’s successful defense of Fletcher

and his later participation as her surrogate father at her

wedding.” The district court agreed with our Court’s prior

statement that Skelton’s close friendship with Fletcher, while not

necessary to the decision, “confirms the reality of the conflict of

interest position in which Skelton placed himself.” Perillo I, 79

1992. In one of those matters, Skelton sought the payment of fees from an indigent defendant that he was court appointed to represent.

41 F.3d at 451 n.13.

With respect to the actual conflict issue, the district court

held that Skelton owed Fletcher a continuing duty of loyalty based

upon his former and concurrent representation of Fletcher. Had

Skelton impeached Fletcher’s testimony, she could have been

prosecuted for perjury. By not impeaching Fletcher’s testimony,

Skelton made a choice not to pursue a plausible defensive strategy

that could have had significant impact with respect to Perillo’s

punishment.

The district court persuasively contrasted Skelton’s decision

to secure independent counsel for Fletcher on the potential for

conflicts with Skelton’s failure to likewise protect or inform his

other client, Perillo, about either the details of Skelton’s former

representation of Fletcher or the details of Skelton’s ongoing

relationship with Fletcher, let alone her rights in the event of a

conflict of interest. The district court further found, as a

matter of fact, (1) that Skelton guided Fletcher’s cross-

examination with leading questions throughout, (2) that Skelton

elicited details concerning his former representation of Fletcher,

(3) that Skelton elicited testimony that Fletcher had met with the

victim’s mother about possibly helping in the prosecution of

Briddle, (4) that Skelton made a careful record of the fact that he

had not discussed the facts of the case with Fletcher before the

previous evening, and (5) that Skelton’s cross-examination revealed

a host of extraneous bad acts by Perillo and essentially repeated

the most damaging portions of the state’s direct. Despite

42 Perillo’s persistent demands that Skelton cross-examine Fletcher

regarding her more extensive involvement in the crime, which

neither Skelton nor Pelton deny, Skelton did not attempt to

discredit or minimize Fletcher’s testimony in any way. The

district court discounted Skelton’s assertion that Fletcher wanted

to help Perillo, citing Fletcher’s testimony that she was “pleased”

with the outcome of Perillo’s trial.

With respect to adverse effect, the district court found that

Skelton’s conflict affected his performance as Perillo’s counsel,

both on the issue of guilt and on the issue of punishment. The

district court identified at least three plausible alternative

defensive strategies or tactics that could have been employed, but

were not because of Skelton’s conflict of interest. Those three

were: (1) adducing evidence that Fletcher had blood on her jeans

when arrested, indicating a more active role in the murders and

thereby impeaching Fletcher’s credibility; (2) pointing out to the

jury that Perillo turned Fletcher and Briddle in to the police,

giving Fletcher a motive for incriminating Perillo; and (3)

impeaching Fletcher’s testimony with her prior inconsistent

statement to Denver Police that she last saw Banks when he let her

off on the freeway, and that as far as she knew, Banks was alive

and well. The district court also identified at least two points

where Skelton’s performance was impaired as a result of the

conflict: (1) when Skelton permitted Fletcher to further

incriminate Perillo by eliciting testimony from Fletcher regarding

Perillo’s alleged participation in a variety of extraneous

43 offenses; and (2) when Skelton protected Fletcher from a rigorous

cross-examination by reviewing his cross-examination with Fletcher

prior to her testimony. The district court found that each of

these examples of adverse effect was proven by a preponderance of

the evidence.

The Director filed a motion for reconsideration which was

denied. The Director’s timely notice of appeal followed.

IV.

The parties’ arguments on the issue of actual conflict depend

in large part upon the distinction between concurrent and

successive representation. Several of our sister circuits have

drawn such a distinction in Sixth Amendment conflict of interest

cases, holding that an actual conflict may be more difficult to

prove when it arises from the context of successive or serial

representation rather than concurrent representation. See, e.g.,

Freund v. Butterworth,

(11th Cir.), cert. denied,

(1999); Maiden v. Bunnell,

(9th Cir.

1994); McConico v. Alabama,

(11th Cir. 1990).

But see Church v. Sullivan,

(10th Cir. 1991)

(rejecting the view that successive representation cases are

necessarily more difficult to prove). The Director seeks to rely

upon this distinction, by placing Perillo’s claim squarely in the

category of those cases involving exclusively successive, rather

than concurrent, representation. The problem is that, even if the

Director were correct that this case involved purely successive

representation, a premise with which we do not agree, Perillo would

44 still be entitled to relief.

The Director first argues that Perillo’s claim is Teague-

barred because Cuyler does not clearly apply to cases involving

successive, as opposed to concurrent, representation. We disagree.

Cuyler has never been limited to concurrent representation cases in

this circuit. Indeed, our most recent en banc treatment of Cuyler

expressly extends Cuyler to all cases of multiple representation,

whether successive or concurrent. See Beets v. Scott,

(5th Cir. 1995) (en banc) (“Strickland offers a superior

framework for addressing attorney conflicts outside the multiple or

serial client context.”) &

at 1265 n.8 (“Cuyler has been

routinely applied to cases in which an alleged attorney conflict

resulted from serial representation of criminal defendants as well

as simultaneous multiple representation. . . . For convenience, we

denominate both of these situations as ‘multiple

representation.’”). Moreover, Cuyler itself can be viewed as a

serial or successive representation case. In Cuyler, three

defendants were represented by the same two lawyers at the three

defendants’ successive trials for the same offense. When the first

defendant was tried, counsel rested after presentation of the

state’s case and without presenting a defense. See Cuyler,

. Although the two lawyers later disagreed as to why no

defense was presented in the first trial, one of the lawyers

testified that he did not want to present a defense in the first

trial because it would prejudice the remaining two cases by

exposing potential defense witnesses. See

. The first

45 defendant filed suit arguing that his right to conflict-free

counsel was impaired. The Third Circuit granted relief on the

basis that the multiple representation involved a “possible”

conflict of interest. The Supreme Court vacated, but remanded for

reconsideration of whether the successive representation of the

three defendants created an actual, as opposed to possible,

conflict of interest. See

. Given that Cuyler has

routinely been applied to cases involving successive

representation, the Director’s position that Perillo’s claim is

either not governed by Cuyler or is Teague-barred because her claim

is not clearly governed by Cuyler is without merit.

Several circuits have established a separate standard for

successive, as opposed to concurrent, representation, holding that

an actual conflict may not be shown absent proof (1) that counsel

actually learned particular confidential information in the course

of the prior representation, or (2) that there is a substantial

relationship between the former and subsequent representations, or

(3) that counsel otherwise divided his loyalties. See, e.g., Enoch

v. Gramley,

(7th Cir. 1995); Maiden,

; see also Freund,

(applying a more narrow test

requiring proof (1) that counsel learned confidential information

during the course of the first representation, or (2) that there is

a substantial relationship between the first and second

representations). The distinction drawn in these cases between

concurrent and successive representation is premised in part upon

analogous ethical rules, which may be informative but are not

46 determinative with respect to whether there is an actual conflict

for Sixth Amendment purposes. See Strickland,

.

The distinction is also premised upon generalizations about the

factual context that tends to be associated with each type of

claim. In a claim involving concurrent representation, there is an

obvious temporal relationship and the substantive relationship

between the two representations may also tend to be closer. See,

e.g., United States v. Malpiedi,

(2d Cir.

1995); Nealy v. Cabana,

(5th Cir. 1986).

Similarly, in a case of successive representation, both the

temporal and substantive relationship between the two

representations may be quite remote. See, e.g., Enoch,

. Those generalizations may not, however, hold universally

true. See United States v. Winkle,

(10th Cir.

1983); see also Church,

& n.8 (rejecting focus

upon whether multiple representations were concurrent or successive

in favor of a focus upon the relationship between the multiple

representations).

Our Court has not definitively embraced the theory that there

is any real and inviolate substantive difference between conflicts

of interest arising in the context of successive, as opposed to

concurrent, representations. Instead, we have in each case focused

upon the “guiding principle in this important area of Sixth

Amendment jurisprudence,” which is whether counsel’s allegiance to

the accused was compromised by competing obligations owed to other

clients. Alvarez,

. That is not to say that

47 those factors employed in the threshold tests employed by our

sister circuits are without import in our own precedent. A

conflict of interest may exist by virtue of the fact that an

attorney has confidential information that is helpful to one client

but harmful to another. See United States v. Placente,

(5th Cir. 1996) (collecting cases). Likewise, we have

relied upon the relationship between the subject matter of the

multiple representations when determining whether counsel was

burdened by an actual conflict. See, e.g., Russell v. Lynaugh,

(5th Cir. 1989); see also Alvarez,

(stating principle and collecting consistent cases). This Court

has also relied upon the temporal relationship between the prior

and subsequent representations. Where the prior representation has

not unambiguously been terminated, or is followed closely by the

subsequent representation, there is more likely to be a conflict

arising from defense counsel’s representation of the first client.

See, e.g., Stephens v. United States,

(1977). Where,

on the other hand, defense counsel’s prior representation

unambiguously terminated before the second representation began,

the possibility that defense counsel’s continuing obligation to his

former client will impede his representation of his current client

is generally much lower. See, e.g., Vega v. Johnson,

(5th Cir. 1998), cert. denied,

(1999). This Court

has also relied upon the character and extent of the prior

representation. Where the prior representation involved a formal

and substantial attorney-client relationship, a finding of actual

48 conflict is more likely. See, e.g., Alvarez,

;

Castillo v. Estelle,

(5th Cir. 1974). Where,

however, defense counsel’s involvement in the prior representation

was either transient or insubstantial, we have been less inclined

to find an actual conflict. See United States v. Olivares,

(5th Cir. 1986). Thus, whether the facts of a

particular case give rise to an actual conflict depends, not so

much upon the label used to define the attorney’s conflict, as upon

these and any other factors that illuminate whether the character

and extensiveness of the prior representation were such that

counsel is prevented “by his interest in another’s welfare from

vigorously promoting the welfare of his [current] client.” Vega,

.

The Director argues that we should abandon this multi-factoral

approach and adopt a more limited formulation restricting more than

even our sister circuits when an actual conflict may exist in a

case involving successive representation . The Director maintains

that an attorney’s loyalty to his current client can never be

fettered by any inconsistent duty owed to a former client, absent

proof that counsel obtained confidential information during the

course of the first representation. Stated differently, the

Director maintains that a lawyer can never owe any duty to a former

client aside from the duty to preserve confidential information.

The Director then relies upon evidence that Skelton never obtained

any confidential information from Fletcher for the legal conclusion

that Skelton could not have been burdened by an actual conflict.

49 We disagree with both the factual premise and the legal

conclusion of the Director’s argument. The rather remarkable

proposition that Skeleton learned no confidential information

during the course of his lengthy professional and personal

relationship with Fletcher depends upon the testimony of Skelton

himself. Skelton’s testimony on this point is significantly

undermined by Skelton’s additional testimony and Gray’s testimony

that good criminal practice would have required that he discuss the

facts of the case, at least to some extent, with Fletcher, and by

certain then-applicable ethical rules that would have required

Skelton to discern what Fletcher knew about the crimes. See ABA

STANDARDS FOR CRIMINAL JUSTICE, Standard 4-3.2(a) (providing that

the attorney for the accused should “seek to determine all relevant

facts known to the accused” as soon as practicable). Whatever

remaining weight that evidence could be given is completely

destroyed by the ample evidence in this record that Skelton

endorses the practice of lying in a professional context where the

truth does not suit. The district court expressly found Skelton’s

testimony to be incredible. We agree, and therefore reject

Skelton’s incredible testimony that he never obtained any

confidential information from Fletcher.

Moreover, even if Skelton’s incredible testimony were credited

as being truthful, that evidence establishes only that Skelton

never obtained any confidential information directly from Fletcher

herself. But an attorney’s duty of confidentiality is broader than

just client communications, and extends to all confidential

50 information, whether privileged or unprivileged, and whether

learned directly from the client or from another source. See

Brennan's, Inc. v. Brennan's Restaurants, Inc.,

, 171-

72 (5th Cir. 1979) (discussing scope of duty of confidentiality

under ABA standards); see also Douglas v. DynMcDermott Petroleum

Operations Co.,

(5th Cir. 1998) (discussing

scope of the duty of confidentiality under similar Louisiana

ethical rules), cert. denied,

(1999). To the extent

that the relevant ethical standards are probative on the issue of

actual conflict, we note that that was the scope of the duty of

confidentiality when Perillo was tried,9 and remains the scope of

that duty today.10 Thus, Skelton’s testimony that he never learned

any confidential information directly from Fletcher is simply not

probative with respect to whether Skelton learned confidential

information about Fletcher’s case during the course of his lengthy

professional relationship with Fletcher.

We likewise reject the Director’s legal conclusion that an

9 See ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 4- 101 (requiring an attorney to preserve privileged “confidence[s],” as well as unprivileged "secrets") & id. Canon 4, EC4-4 (providing that an attorney’s duty of confidentiality “exists without regard to the nature or source of the information or the fact that others share the knowledge”). Texas adopted the ABA Model Code of Professional responsibility in 1969. See TEXAS CODE OF PROFESSIONAL RESPONSIBILITY DR4-101 & id. Canon 4, EC-4 (same). 10 See ABA MODEL RULE OF PROFESSIONAL RESPONSIBILITY 1.6 & cmt. 5 (“The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”). Texas adopted the Model Rules in 1990. See TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.05(a) & cmt. 4 (extending Rule 1.05 to both privileged information furnished by the client and unprivileged information relating to the client).

51 attorney’s possession of confidential information is the only

factor of any importance when examining whether an attorney’s

successive representation of multiple defendants in the same

criminal episode deprived the second client of his or her Sixth

Amendment rights. The Director is essentially arguing that an

attorney can take an adverse position undermining the attorney’s

prior work the moment (or as in this case, within a few hours

after) concurrent representation ends, and without regard to

whether there has been a waiver of the conflict on the record, so

long as there is no confidential information to protect. Such an

approach would be inconsistent with our own precedent, the

applicable ethical rules, and every other circuit to have

specifically addressed the issue. While we have not expressly

adopted a rule providing that proof of a substantial and particular

relationship between two successive representations may, together

with additional evidence, support a finding of actual conflict, we

have clearly and unambiguously relied upon the relationship between

multiple representations when examining whether an attorney’s dual

relationship with two or more clients infringed upon a defendant’s

Sixth Amendment right to the effective assistance of conflict-free

counsel. See Russell,

; Olivares,

;

Martinez,

; see also Alvarez,

. We have also relied upon the “substantial relationship” test

when reviewing a former client’s motion to disqualify counsel from

pursuing successive and potentially adverse representation of

another client in civil cases. See, e.g., In re American Airlines,

52

(5th Cir. 1992) (“This Circuit adopted the

substantial relationship test before the promulgation of the Rules

of Professional Conduct.”). In that context, “[o]nce it is

established that the prior matters are substantially related to the

present case, the court will irrebuttably presume that relevant

confidential information was disclosed during the former period of

representation.”

.

The Director relies upon the irrebuttable presumption arising

in the civil disqualification context to argue that the

“substantial relationship” test is really nothing more than a rule

of proof designed to avoid difficult evidentiary hurdles associated

with proving that counsel obtained confidential information in the

course of the first representation, which may be disclosed in the

course of the second representation. We disagree. We have refused

to “reduce the concerns underlying the substantial relationship

test to a client’s interest in preserving his confidential

information.”

. To the contrary, the substantial

relationship test is concerned with both “a lawyer’s duty of

confidentiality and his duty of loyalty” to a former client.

.

The relevant ethical standards likewise distinguish between

the attorney’s duty not to reveal confidential information obtained

in the course of a prior representation in the course of a second

representation and an attorney’s duty not to represent adverse

interests in the same or a substantially related matter. For

example, ABA Model Rule of Professional Conduct 1.9 contains a

53 blanket provision prohibiting an attorney from accepting subsequent

employment adverse to the interests of a former client in the same

or a substantially related matter. See ABA MODEL RULE OF

PROFESSIONAL CONDUCT 1.9 & cmts. 1, 6, & 10 (distinguishing between

the duty of confidentiality and the duty to refrain from

undermining the work product produced for the former client or

advocating for an interest that is materially adverse to the former

client). Similarly, Texas Disciplinary Rule of Professional

Conduct 1.09 prohibits subsequent employment in a matter adverse to

the former client, not just when the subsequent representation will

probably involve the disclosure of confidential information learned

in the course of the former representation, but also when counsel’s

representation of the second client will call the validity of the

lawyer’s services or the work product produced for the former

client into question, or when counsel will be representing adverse

interests in the same or a substantially related matter. TEXAS

DISCIPLINARY RULES OF PROFESSIONAL CONDUCT 1.09(a)(1-3).

Similarly, although the former Model Code of Professional

Responsibility did not expressly address an attorney’s duty of

loyalty to a former client, we have held that such a duty was

implicit in certain provisions of the Code. See

(addressing Canon 9 of the MODEL CODE OF PROFESSIONAL

RESPONSIBILITY, Canon 9); see also ABA MODEL RULE OF PROFESSIONAL

CONDUCT DR 5-105 nn. 36-37 (extending to rule prohibiting

representation of “differing interests” to the successive

representation context). Thus, contrary to the Director’s

54 argument, our Sixth Amendment precedent, our analogous

disqualification precedent, and the relevant ethical standards all

support the proposition that Skelton owed Fletcher, his former

client, not just a duty to preserve any client confidences, but

also a duty to avoid accepting employment that was adverse to her

interests in the same or a substantially related matter. At the

same time, Skelton owed Perillo, his client facing capital charges,

a duty of loyalty, which encompassed a duty to avoid conflicts of

interest by refusing subsequent employment advocating materially

adverse interests, see, e.g., Strickland,

;

Cuyler,

, and a duty to zealously advocate on her

behalf, unhampered by any competing commitments to other clients,

see, e.g., Nealy,

; Alvarez,

.

Having set forth those general principles, we proceed to an

analysis of whether Skelton was burdened by an actual conflict

between the interests of his two concurrent clients in this case.

V.

An actual conflict may exist and the Constitution is

implicated when an attorney is placed or places himself or herself

in a situation “inherently conducive to divided loyalties.”

Castillo,

; Johnson v. Hopper,

(5th Cir. 1981) (internal quotations omitted); Zuck v. Alabama,

(5th Cir. 1979) (internal quotations omitted); see

also Placente,

. “An attorney who cross-examines a

former client inherently encounters divided loyalties.” United

States v. Voigt,

(3d Cir. 1996); Lightbourne v.

55 Dugger,

(11th Cir. 1987); see also Stephens,

; Castillo,

(involving

representation of government witness against second client). “In

these circumstances, counsel is placed in the equivocal position of

having to cross-examine his own client as an adverse witness. His

zeal in defense of his client the accused is thus counterpoised

against solicitude for his client the witness.” Castillo,

. But, in keeping with the requirement for an actual, as

opposed to a mere hypothetical or possible conflict, this Court has also held that something more must be shown to demonstrate that the

inherent potential for conflict actually moved into the realm of an

actual conflict. See, e.g., Olivares,

.

That “something more” is amply demonstrated in this case.

Skelton represented Fletcher at her own aggravated robbery trial,

a proceeding in which she originally faced the same charge for the

same murders arising from the same facts as Perillo. Skelton’s

prior representation of Fletcher thus occurred in the same, or at

the very least, in a very closely related criminal matter. From its inception, Skelton’s prior representation of Fletcher featured

the denigration of Perillo as a prominent factor. Indeed,

Skelton’s strategy at Fletcher’s criminal trial was to develop the

most egregious and inculpatory evidence of Perillo’s own guilt, and

by comparison, Fletcher’s innocence.

After Fletcher’s trial, Skelton became closely aligned with

the victim’s interests, strongly encouraging Fletcher’s involvement

with the victim’s families’ and their attempts to independently

56 investigate the crimes. When Briddle came to trial, Skelton

strongly encouraged Fletcher to volunteer her testimony. Skelton

successfully negotiated at least use, and probably full

transactional, immunity in exchange for Fletcher’s pre-trial

statement and subsequent testimony in Briddle’s trial. Thus, once

again, Skelton’s work product in the course of his prior

representation of Fletcher led directly to the development and

preservation of the most damaging evidence against Perillo,

evidence that clearly led to Perillo’s conviction and ensured the

death penalty at Perillo’s subsequent trial. Those circumstances,

and particularly the fact that Fletcher’s immunity agreement

(Skelton’s work product in the prior representation) depended upon

the truthfulness of Fletcher’s incriminating testimony against

Perillo, should have made the potential for conflict obvious when

Pelton approached Skelton about representing Perillo.

Notwithstanding those circumstances, Skelton agreed to represent

Perillo. Having done so, Skelton immediately called Fletcher to

apprise her of the situation. Skelton did not, however, inform

Perillo concerning the details of his past representation of

Fletcher.

The inherent potential for conflict arising from Skelton’s

prior representation of Fletcher would never have come to fruition

if Fletcher had not been subpoenaed to testify at Perillo’s trial.

But she was, and at Fletcher’s request, Skelton left Perillo’s

trial and went to California to represent Fletcher’s interests.

Thus, Skelton agreed to represent the state’s star witness after

57 Perillo’s trial began, and this is not a case of purely serial

representation. See Perillo I,

.11

As Fletcher’s counsel at the California hearing, Skelton owed

Fletcher the “unfettered duty of complete, legitimate support, not

the task of undermining and tearing down” her credibility or his

earlier work on her behalf. Stephens,

; see also

United States v. Winkle,

(10th Cir. 1983) (vacating

conviction and remanding for determination of whether potential

conflict blossomed into actual conflict where defense counsel

previously represented government witness in a related civil

dispute); Alvarez,

(recognizing the “conflict

inherent in allowing defense counsel to simultaneously to advise a

codefendant who has agreed to testify for the government.”); United

States v. Mahar,

(5th Cir. 1977) (same). “A

lawyer's role encompasses much more than simply advising a

prospective witness to tell the truth; he must take additional

steps to prepare him [or her] to testify.” Alvarez,

; see also

(“It is during this preparatory stage that

defense counsel is torn between serving the witness' best interests

in fully cooperating with the government in supplying credible

testimony and the accused's obvious desire to discredit the

witness' testimony. The Constitution does not countenance such

11 In Perillo I, we characterized Skelton’s representation of Fletcher in California and Perillo at trial as “concurrent,”

, and “simultaneous,”

. While not essential to our disposition, we reiterate here that we reaffirm, on the basis of the entire record as supplemented on remand, that this case involves both concurrent as well as successive representation by Skelton.

58 divided loyalties.”). Although both of Skelton’s clients wanted to

avoid Fletcher’s testimony, their reasons for doing so were very

different. Once Fletcher was directed to return to Texas, that

potential conflict between the two women’s interests ripened into

an actual conflict. From that moment on, Fletcher needed to

testify, as she did at Briddle’s trial, that she was not in the

house when the murders occurred. Perillo needed to show that

Fletcher was more actively involved in the offenses, to impeach

Fletcher’s credibility, to minimize the effect of her testimony,

and to highlight the disparity in punishment for comparable

conduct.

Skelton was laboring under an actual conflict because he had

to choose between undermining the work product resulting from his

prior representation of Fletcher by exposing her to perjury charges

and vigorously pursuing the impeachment of Fletcher. Perillo has

established that Skelton either knew or should have known prior to

Fletcher’s testimony that Perillo’s version of the facts reflected

a more active involvement by Fletcher. That information was

helpful to Perillo, in that it would further Skelton’s trial

strategy by demonstrating that Briddle had even greater control

over Fletcher and by highlighting the potential disparity between

Fletcher’ five year probated sentence and the potential death

sentence in Perillo’s case. That information was potentially

devastating to Fletcher, in that proof that she was more actively

involved than she had admitted at Briddle’s trial would, at the

very least, subject her to criminal perjury charges. See Placente,

59

(an actual conflict may exist when “counsel’s

introduction of probative evidence or plausible arguments that

would significantly benefit one defendant would damage the defense

of another defendant whom the same counsel is representing”);

Perillo I,

(an actual conflict may exist “when one

client would benefit by a person testifying and one client would be

harmed by it.”); Nealy,

(“A defendant is entitled

to an attorney who can make a decision to use or not to use

testimony unfettered by the effect of that decision on his other

client’s case.”) (internal alternations and quotations omitted).

Further, Fletcher was testifying pursuant to a grant of immunity

that was either negotiated by Skelton or obtained during the course

of his representation of Fletcher. An actual conflict exists when

“counsel, unknown to the accused and without his [or her]

knowledgeable assent, is in a duplicitous position where his [or

her] full talents as a vigorous advocate having the single aim of

acquittal by all means fair and honorable are hobbled or fettered

or restrained by commitments to others.” Alvarez,

. Once Fletcher took the stand, Skelton was in no position to

undermine the validity of Fletcher’s immunity agreement, which was

either negotiated by him or obtained during the course of his

representation of Fletcher. See Stephens,

; see

also Winkle,

.

Skelton’s agreement to represent Fletcher after Perillo’s

trial began makes this case most closely analogous to those cases

in which counsel is still actively representing the potentially

60 adverse interest close to or during trial. In such cases, as in

this one, the actual conflict is most apparent when defense counsel

cross-examines the former client. For example, in Alvarez,

, defense counsel represented multiple clients in a drug

conspiracy case. All of counsel’s clients except one pleaded

guilty. When the government identified two of defense counsel’s

former clients as potential government witnesses in the remaining

defendant’s trial, counsel represented those former clients in a

motion to resist testifying at the remaining defendant’s trial.

See

. Counsel lost the battle when, as in Perillo’s

case, the government agreed to grant the two testifying clients

immunity. The Court held that, at this point, and even before the

trial started, there was an actual conflict arising out of

counsel’s “irreconcilable task of at once bolstering [to protect

their rights under their plea agreement] and discrediting [to

protect the rights of the remaining defendant] the testimony” of

the two potential witnesses.

. We expressly held that

even the pre-trial conflict would be sufficient to support its

decision reversing the convictions. See

Counsel then went on

to conduct a very limited cross-examination of his former clients.

See

.

As in Alvarez, this case involves defense counsel’s active

representation of a former client’s interests while that client was

on the stand testifying against defense counsel’s current client.

Skelton’s own testimony, as well as the remaining record evidence,

demonstrates that Skelton thought he could avoid the obvious

61 conflict with a strategy intended to reconcile Fletcher’s and

Perillo’s divergent interests. Thus, Skelton started with the

premise that Fletcher’s testimony was “set in stone,” which

simultaneously protected Fletcher’s interests and limited the

defensive theories available to Perillo. The blended result of

Skelton’s choice was an illogical and internally inconsistent trial

strategy that eludes precise statement and, as developed supra, is

simply not borne out in the record.

Finally, we note that an actual conflict may exist when an

attorney represents two clients whose interests in the outcome of

a matter are different. See Perillo I,

. That

Perillo and Fletcher had divergent interests with respect to the

outcome of Perillo’s trial is made painfully obvious by Fletcher’s

testimony that she was “pleased” with the outcome of Perillo’s

trial and that she does not care whether Perillo gets the death

penalty. Likewise, Skelton’s continuing relationship with

Fletcher, even to the point of obstructing Perillo’s access to

Fletcher for purposes of this habeas proceeding, highlights the

reality of his two client’s divergent interests in the outcome of

Perillo’s trial.12

12 We continue to believe that Skelton’s personal relationship with Fletcher confirms the reality of Skelton’s conflicted position. See Perillo I,

n.13. The Director argues that this Court’s reliance upon Skelton’s personal relationship with Fletcher as a basis for finding an actual conflict is precluded by this Court’s en banc opinion in Beets. In Beets, this Court limited the application of Cuyler to the multiple representation context, holding that Cuyler does not apply when the alleged conflict is between counsel’s personal interests and his professional duty to the accused. See Beets,

. Instead, Cuyler applies only when there is an actual conflict

62 The Director maintains that any actual conflict was completely

dissipated by Will Gray’s appearance on Fletcher’s behalf at

Perillo’s trial. We disagree. The record establishes that Skelton

continued to actively represent Fletcher’s interests, even after

Fletcher’s afternoon meeting with Gray. Indeed, Skelton protected

Fletcher from perjury charges and ensured that Fletcher’s testimony

would be consistent with her prior testimony by refreshing her

recollection in a private consultation the night before her

testimony. Skelton also ignored his duty to Perillo and protected

Fletcher’s interests by refusing Perillo’s demands that he question

Fletcher on inconsistencies and falsehoods in her testimony that

Perillo has testified were intended to make Perillo look like the

ringleader and to minimize Fletcher’s own involvement. See Winkle,

(the inherent danger when counsel proposes to

cross-examine a former client “is in what the advocate finds

himself compelled to refrain from doing”) (internal quotations

omitted). Significantly, although Gray appeared briefly at

Perillo’s trial on Fletcher’s behalf, both Skelton and Fletcher

rejected Gray’s only substantive advice by refusing to pursue a

course that would permit Fletcher to invoke her attorney-client

between the adverse interests of two or more clients.

We are not persuaded that Beets requires the conclusion that an attorney’s personal relationship with a client is always immaterial when determining whether counsel labored under an actual conflict between the interests of the two clients. Nonetheless, we need not resolve the precise scope of Beets in this case because our decision that there was an actual conflict in this cases does not depend upon Skelton’s personal relationship with Fletcher. There is ample evidence to establish that conflict without reliance upon the more subjective aspects of Skelton’s relationship with Fletcher and her family.

63 privilege. Instead, Skelton coached Fletcher through an elaborated

version of her prior testimony, once again elevating her interests

over Perillo’s by ensuring that Fletcher’s prior testimony went

unchallenged. While Skelton’s continued advice to Fletcher the

evening before the trial and coached cross-examination at trial

technically occurred within that exceedingly narrow window of time,

indeed a matter of hours, that Will Gray at least ostensibly

replaced Skelton as Fletcher’s lawyer, Skelton’s relationship with

Fletcher during that time was at least the type of functional

equivalent of representation that may give rise to fiduciary

duties. See Beets,

(noting that Wood v. Georgia,

(1981) did not clearly state whether one of the

competing obligations in that case arose from a formal attorney-

client relationship, and stating that “the lawyer was at least in

the functional equivalent of a joint representation”); see also

United States v. Malpiedi,

(finding that counsel

was burdened by an actual conflict arising from counsel’s informal

advice to a grand jury witness notwithstanding the attorney’s

opinion that there was no attorney-client relationship, that his

communications with the witness was solely for the purposes of

assisting his client, and that the witness was “fair-game” for

cross-examination”); Querner v. Rindfuss,

(Tex. Ct. App.--San Antonio, writ denied) (recognizing that an

attorney’s advice may give rise to an informal fiduciary duty even

when no formal attorney-client relationship is formed). That

Skelton asked someone else to consult with Fletcher on a limited

64 issue and then rejected that lawyer’s advice cannot, in this case,

vitiate the obvious conflict arising from Skelton’s prior,

concurrent, and in fact continuing relationship with Fletcher.

The Director also argues that any duty owed to Fletcher was

obviated by her consent to Skelton’s dual representation, or by her

waiver of the attorney-client privilege between she and Skelton.

Contrary to that position, there is no evidence in this record that

Fletcher made an informed decision to consent to Skelton’s diligent

representation of Perillo, even if that representation would serve

to compromise her own interest. Likewise, there is no record

evidence that Fletcher intentionally waived her attorney-client

privilege. More importantly, the Director’s arguments in this

regard derail the relevant inquiry by focusing exclusively upon

those ethical rules intended to protect the interests of a former

client for the proposition that a subsequent client simply has no

interests to protect. The point is not whether Skelton’s

obligation to Fletcher may, with the benefit of hindsight, be

technically negated. Rather, the point is whether Skelton

compromised his duty of loyalty and zealous advocacy to Perillo by

choosing between or attempting to blend the divergent interests of

his former and current client. See Strickland,

-

67; Cuyler,

; Alvarez,

.

The injury arising from such a compromise is not lessened by a

showing that counsel did not simultaneously trample upon the rights

of his or her former client. Indeed, the very essence of a

conflict of interest is that it requires counsel to make a choice

65 between competing interests, and Perillo would not be able to show

adverse effect if Skelton had not chosen Fletcher’s interest over

her own. Therefore, while we consider Skelton’s continuing duties

of confidentiality and loyalty to Fletcher to be strong and

important evidence of Skelton’s actual conflict in this case, we do

not hold that a habeas petitioner can never prevail in a case

involving successive representation absent proof that counsel owed

some discrete and unavoidable legal duty to the former client. Our

focus must remain at all times upon the adequacy of the complaining

defendant’s representation. See Strickland,

;

Cuyler,

; Alvarez,

,

We emphasize that this is not a case where the defendant sat

idly by without complaint as to the substance of the government

witness’ testimony, or where the defendant actually agreed with or

relied upon the government witness’ testimony. See Alvarez,

(finding conflict where defendant vociferously

objected to the substance of the first client’s testimony and

stating that there is no actual conflict where the defendant agrees

with or concedes the substance of the first client’s testimony).

Perillo vigorously protested the accuracy of Fletcher’s testimony

as it was occurring and urged Skelton to cross-examine Fletcher

on particular factual issues relating to Fletcher’s own

involvement. Likewise, this is not a case in which the defendant,

fully informed of the relationship between her counsel and the

state’s witness, nonetheless insisted upon representation by a

particular lawyer, only to turn around and claim on collateral

66 review that such representation was constitutionally deficient .

See, e.g., United States v. Casiano,

(5th Cir. 1991);

Olivares,

. Perillo’s objection to counsel regarding

the substance of Fletcher’s testimony and her lawyer’s refusal to

follow her instructions are amply supported in this record.

We affirm the district court’s conclusion that Perillo has

established by a preponderance of the evidence that Skelton was

“torn in his loyalty and unable to make a decision purely in the

interest of [Perillo] . . . to whom he owed undivided allegiance.”

Nealy,

. Having established that Skelton’s

representation of Perillo at trial was burdened by an actual

conflict, we now examine whether that conflict adversely affected

Skelton’s representation of Perillo at trial.

VI.

Cuyler’s adverse effect standard is set intentionally lower

than Strickland’s actual prejudice standard. Under Strickland, a

petitioner must “show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland,

. Under Cuyler, the focus is upon whether the actual conflict

burdening counsel’s performance had an actual and adverse effect on

counsel’s performance. Once it is established that there was an

adverse effect on counsel’s performance, prejudice, in terms of an

effect on the outcome of the defendant’s trial, is presumed. See

67 Beets,

.13

An adverse effect on counsel’s performance may be shown with

evidence that counsel’s judgment was actually “fettered by concern”

over the effect of certain trial decisions on other clients.

Perillo I,

. As we held in Perillo I, when a

petitioner’s claim is premised solely upon what a conflicted lawyer

failed to do on his or her behalf, the petitioner must generally

13 There are at least two rationales supporting the application of a lowered standard of prejudice in Cuyler cases, both of which are demonstrated in this record. First, a cold record may not reveal “the erosion of zeal that may ensue from divided loyalty.” See United States v. Castillo,

; see also Strickland,

(“[I]t is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.”); Johnson,

(discussing the “nigh impossible task of making a meaningful qualitative analysis of trial counsel proficiency, in a case involving divided loyalties, from an examination of the transcript alone”). That premise holds particularly true when, as here, our task is to peruse the trial transcript “for subtle variations in demeanor and lack of vigor and depth” during cross-examination. See Johnson,

; see also Winkle,

. “Unlike competency of representation, where an attorney’s conduct may fall anywhere along a continuum ranging from the incompetent to the superlative, conflict-laden representation is not susceptible of such fine gradations. Such representation is invidious, often escaping detection on review, and is tantamount to the denial of counsel itself.” Alvarez,

. The Supreme Court has also recognized that there are institutional reasons supporting “a fairly rigid rule of presumed prejudice for conflicts of interest.” See Strickland,

. Defense counsel owes the client a duty of loyalty, which includes the “duty to avoid conflicts of interest.” See

. In addition, trial courts can play an important role in situations inherently rife with conflict by ascertaining whether the defendant understands the consequences of the potential conflict and nonetheless wants to continue with the present lawyer. See

. That rationale for Cuyler’s lowered standard of prejudice is likewise at play in this record. At Perillo’s trial, the trial court, the prosecutors, and Skelton himself showed every solicitude for Fletcher’s knowledge and understanding of the implications of the actual conflict burdening Skelton’s performance, without making any inquiry intended to protect Perillo’s interests.

68 establish adverse effect by demonstrating that there was some

plausible alternative defense strategy that could have been

pursued, but was not, because of the actual conflict. See id. at

449 (relying upon Beets,

(King,J., dissenting),

which in turn relied upon the Second Circuit’s test for measuring

adverse effect premised upon “what an attorney failed to do").14

In this case, Perillo must show, not only that Skelton’s

performance was compromised, but that the compromises revealed in

the record were generated by the actual conflict between Fletcher’s

and Perillo’s interests.

The Director argues that there was no adverse effect on

Skelton’s performance in this case because Perillo has not

demonstrated the required causal relationship between the actual

conflict and any compromise in Skelton’s advocacy on Perillo’s

behalf. The Director first argues that there can be no finding of

adverse effect because Skelton subjectively believed that

Fletcher’s and Perillo’s interests were without significant

conflict. Thus, the Director maintains that, as a matter of

subjective fact, Skelton did not deliberately elevate Fletcher’s

interests over Perillo’s. We disagree. Skelton’s testimony is

incredible in light of abundant record evidence tending to

establish that the actual conflict was painfully obvious to

everyone concerned. Moreover, “[a]fter the fact testimony by a

14 While our analysis does not depend upon the distinction, we note that the record, including the record developed on remand after our prior disposition, establishes that more is involved in this case than mere omissions on Skelton’s behalf.

69 lawyer who was precluded by a conflict of interest from pursuing a

strategy or tactic is not helpful. Even the most candid persons

may be able to convince themselves that they actually would not

have used that strategy or tactic anyway, when the alternative is

a concession of ineffective assistance resulting from ethical

limitations.” Malpiedi,

. We have never premised

the finding of an actual conflict or adverse effect upon evidence

that the attorney intentionally compromised his professional

loyalties; it is enough that there was an error in judgment that

adversely affected Skelton’s performance. See Castillo,

(“We do not ascribe to Castillo’s appointed attorney nor to

the appointing judge improper motives, but they are chargeable with

an error of judgment fatal to a fair trial.”).

Similarly, the Director argues there can be no finding of

adverse effect because Skelton subjectively believed that

impeaching Fletcher would not have aided Perillo’s defense. “But

a showing of adverse effect does not require a but for inquiry.”

Nealy,

(finding adverse effect where the record

suggested that defense counsel decided against calling a particular

witness because he feared the witness would harm the petitioner’s

case, rather than because he also represented the potential

witness); see also Malpiedi,

. To the contrary, the

defendant need only establish that there was a plausible

alternative defensive strategy that could have been pursued, but

was not because of the actual conflict of interest.

We conclude that Perillo has proven that Skelton’s performance

70 was adversely affected by the actual conflict of interest between

Fletcher’s and Perillo’s interests. The record demonstrates that

Skelton’s representation of Perillo was fettered by competing

concerns for Fletcher’s welfare from the moment the state

subpoenaed Fletcher to testify. That conflict was apparent in

Skelton’s pretrial advocacy, including his decision to protect

Fletcher’s interests by securing Gray’s advice on how to handle

Fletcher’s testimony, by reviewing Fletcher’s testimony to ensure

that her Perillo testimony would be completely consistent with her

Briddle testimony, and by his adoption of trial strategies that

would bolster Fletcher’s credibility, treat her as a friendly

witness, and permit Fletcher’s damaging Briddle testimony to remain

“set in stone.” The adverse effect on Skelton’s performance is

most dramatically illustrated by the content and structure of

Skelton’s cross-examination of Fletcher, together with his

attendant refusal to follow Perillo’s explicit instructions by

vigorously cross-examining Fletcher and his refusal to allow

Perillo to testify. That adverse effect is also illustrated by

Skelton’s desperate retreat to a completely illogical defensive

position during the guilt phase, in which Skelton’s only offering

on Perillo’s behalf was to have a police officer repeat the most

damaging elements of the state’s case against Perillo, as

supplemented by the even more incriminating and inadmissible facts

contained in Perillo’s unsigned second statement. We have no

trouble concluding, based upon the particular factual context of

this case, that Skelton compromised his duty of loyalty to Perillo,

71 his capital client on trial, in order to accommodate his concurrent

duty to avoid undermining his work product on Fletcher’s behalf by

exposing her to prosecution for perjury. Skelton may have

convinced himself that the accommodation he crafted between the two

women’s interests would be good for both, but Perillo had the right

to counsel unfettered by these competing concerns. See, e.g.,

Nealy,

.

Perillo has also demonstrated that there were plausible

alternative defense strategies that could have been pursued, but

were not, because of the actual conflict between Fletcher’s and

Perillo’s interests. Those plausible alternatives are detailed in

our prior opinion, as well as in the district court’s order. See,

e.g., Perillo I,

-51 & n.12. Having reviewed the

entire record, including the record on remand, we are persuaded

that Skelton’s failure to pursue these plausible alternatives,

which could only have strengthened Perillo’s defense under

Skelton’s chosen trial strategy, was in fact caused by the actual

conflict between his obligations to Fletcher and Perillo. We

therefore hold that Skelton’s representation of Perillo was

burdened by an actual conflict which adversely affected Skelton’s

performance throughout Perillo’s trial.

CONCLUSION

The district court’s judgment granting Perillo’s

petition for relief from her capital conviction and sentence

is AFFIRMED and the cause is REMANDED for further proceedings

consistent with this opinion.

72