Perillo v. Johnson ( 2000 )

  •                      REVISED - March 17, 2000
                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT
                                 No. 98-20653
                             PAMELA LYNN PERILLO,
              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 28 U.S.C.
    § 2254 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
         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, 
    79 F.3d 441
    (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 id.
         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 id. at 450-51.
    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., 
    126 F.3d 727
    , 735 (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, 79
    F.3d at 444.    Thus, this Court did not purport to find an actual
    conflict of     interest   or   an   adverse   effect   arising   from   that
    conflict.   See id. at 444, 451.       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
         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
    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, 
    169 F.3d 281
    283 (5th Cir. 1999); see also United States v. Castillo, 
    179 F.3d 321
    , 326 (5th Cir. 1999),   cert. granted , 
    120 S. Ct. 865
    .   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, 
    100 S. Ct. 1708
     (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, 104 S.
    Ct. 2052, 2070 (1984); Cuyler, 100 S. Ct. at 1715; United States v.
    81 F.3d 555
    , 558 (5th Cir. 1996); Perillo I, 79 F.3d at
    446. 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, 
    104 S. Ct. 4
    at 2070; Placente, 81 F.3d at 558.
          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, 
    100 S. Ct. 1708
     (1980) and
    its progeny.      See Strickland v. Washington, 
    104 S. Ct. 2052
    , 2064-
    67 (1984); Beets v. Scott, 
    65 F.3d 1258
     (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, 104 S. Ct. at 2067; see also Beets, 65 F.3d at
    1265. 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,         104    S.   Ct.   at   2064-69;
    Perillo I, 79 F.3d at 447; Beets, 65 F.3d at 1265.                      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, 100 S. Ct.
    at 1718; Perillo I, 79 F.3d at 447; Beets, 65 F.3d at 1264; see
    also Strickland, 104 S. Ct. at 2067.
          An “actual conflict” exists when defense counsel is compelled
    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 id. at 2067;
    Perillo I, 79 F.3d at 447; United States v. Alvarez, 
    580 F.2d 1251
    1254 (5th Cir. 1978); see also Beets, 65 F.3d at 1270 (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, 79 F.3d at 449.     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, 104 S. Ct. at 2067; Cuyler, 100 S. Ct. at 1719;
    Beets,    65   F.3d   at   1265.       “[U]nconstitutional   multiple
    representation is never harmless error.”    See Cuyler, 100 S. Ct. at
         Beyond those basic legal precepts, Cuyler’s “actual conflict”
    and “adverse effect” elements have been described as “rather
    vague.”   See Beets, 65 F.3d at 1265.     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,
    786 F.2d 659
     (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, 
    630 F.2d 361
     (5th Cir.
    1980) and Alvarez, 
    580 F.2d 1251
     (cross-examination of state
    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, 
    35 F.3d 477
    , 481 (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.
    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, 
    758 S.W.2d 567
    , 568-69 (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
              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.
    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 id. at 568.
         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 id. at 569.
         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.
    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 id.
         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.
    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, 
    656 S.W.2d 78
     (Tex. Crim. App. 1983).
    C.   Fletcher’s Trial and Skelton’s Continuing Relationship with
         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
    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
    D.     Briddle’s Trial and Skelton’s Continuing Relationship with
           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
           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
    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, 79 F.3d at 444 (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, 79 F.3d at 448.         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, 
    994 S.W.2d 651
    , 656 (Tex. Crim.
    App.) (citing Carlisle v. State, 
    137 S.W.2d 782
     (Tex. Crim. App.
    1940) for the proposition that a prosecutorial agreement not to
    prosecute is not binding absent court approval), cert. denied, 
    120 S. Ct. 420
     (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
          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, 994 S.W.2d at 654-56.                   The conclusion that there
    remained    some    ambiguity     as    to     Fletcher’s        status    is    further
    supported by Skelton’s recollection in this proceeding that the
    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, 
    63 F.3d 364
    , 366 (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
    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
    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
    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
    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
         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, 994 S.W.2d at 654-56.     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
    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
    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
               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
         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.
    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-
    examination   of   her   at   Perillo’s   trial   the   next   day.   Gray,
    Fletcher’s putative attorney, was not present for this briefing
         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
    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
    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
              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.
    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
         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
    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, 758 S.W.2d at 572.
          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
              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.
    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, 79 F.3d at 451 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 id.
    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 id.   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
    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.
    Id.       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
               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
    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
    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
         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
    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.
         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
         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
              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.
    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, 
    758 S.W.2d 567
    .              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.
         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, 79 F.3d at
    445-47.    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 id. 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 28 U.S.C. § 2254(d).
    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, 
    117 S. Ct. 2059
     (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, 
    116 F.3d 1115
    , 1120 (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, 79 F.3d at 445.   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.
              We quoted only a small portion of Skelton’s affidavit
    testimony in our prior opinion. See Perillo I, 79 F.3d at 445 n.4.
         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, 79
    F.3d at 445-46 & n.7, and that Perillo had alleged facts which, if
    proven true, would entitle her to relief, see id. at 447-51.
    Accordingly, we vacated the judgment of the district court and
    remanded for discovery and an evidentiary hearing. See id. at 451.
         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.”
    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
    counsel’s performance was compromised by an actual conflict of
                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
    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
              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
    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
                   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
    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
          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
    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
    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.
          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, 
    165 F.3d 839
    , 859 (11th Cir.), cert. denied,
    120 S. Ct. 57
     (1999); Maiden v. Bunnell, 
    35 F.3d 477
    , 480 (9th Cir.
    1994); McConico v. Alabama, 
    919 F.2d 1543
    , 1546 (11th Cir. 1990).
    But see Church v. Sullivan, 
    942 F.2d 1501
    , 1511 (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
    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, 
    65 F.3d 1258
    , 1265 (5th Cir. 1995) (en banc) (“Strickland offers a superior
    framework for addressing attorney conflicts outside the multiple or
    serial client context.”) & id. 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, 100 S.
    Ct. at 1712.    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 id. at 1713.       The first
    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 id. at 1719.                 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, 
    70 F.3d 1490
    , 1496 (7th Cir. 1995); Maiden, 35 F.3d at
    480; see also Freund, 165 F.3d at 859 (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
    determinative with respect to whether there is an actual conflict
    for Sixth Amendment purposes.         See Strickland, 104 S. Ct. at 2065.
    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, 
    62 F.3d 465
    , 467-68 (2d Cir.
    1995); Nealy v. Cabana, 
    782 F.2d 1362
    , 1363-65 (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, 70 F.3d at
    1495-97.   Those generalizations may not, however, hold universally
    true. See United States v. Winkle, 
    722 F.2d 605
    , 609-12 (10th Cir.
    1983); see also Church, 942 F.2d at 1511 & n.8 (rejecting focus
    upon whether multiple representations were concurrent or successive
    in favor of a focus upon the relationship between the multiple
         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, 580 F.2d at 1255, 1258.           That is not to say that
    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, 
    81 F.3d 555
    , 559 (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, 
    892 F.2d 1205
    , 1214 (5th Cir. 1989); see also Alvarez, 580 F.2d at 1259
    (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, 
    595 F.2d 1066
     (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, 
    149 F.3d 354
    (5th Cir. 1998), cert. denied, 
    119 S. Ct. 899
     (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
    conflict is more likely.      See, e.g., Alvarez, 
    580 F.2d 1251
    Castillo v. Estelle, 
    504 F.2d 1243
     (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, 
    786 F.2d 659
    , 663 (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,
    149 F.3d at 360.
         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.
           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
    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., 
    590 F.2d 168
    , 171-
    72 (5th Cir. 1979) (discussing scope of duty of confidentiality
    under ABA standards); see also Douglas v. DynMcDermott Petroleum
    Operations Co., 
    144 F.3d 364
    , 369-70 (5th Cir. 1998) (discussing
    scope of the duty of confidentiality under similar Louisiana
    ethical rules), cert. denied, 
    119 S. Ct. 798
     (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
    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).
    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).
    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, 892 F.2d at 1214; Olivares, 786 F.2d at 663;
    Martinez, 630 F.2d at 362; see also Alvarez, 580 F.2d at 1254,
    1257. 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,
    972 F.2d 605
    , 614-16 (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.”       Id. at 614.
           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.”        Id. at 616-18.    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.                 Id.
    at 619.
           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
    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 id. at 618
    (addressing             Canon     9     of     the       MODEL     CODE       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
    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, 104 S. Ct. at 2065;
    Cuyler, 100 S. Ct. at 1717, and a duty to zealously advocate on her
    behalf, unhampered by any competing commitments to other clients,
    see, e.g., Nealy, 782 F.2d at 1365; Alvarez, 580 F.2d at 1254.
             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.
             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, 504 F.2d at 1245; Johnson v. Hopper, 
    639 F.2d 236
    , 238
    (5th Cir. 1981) (internal quotations omitted); Zuck v. Alabama, 
    588 F.2d 436
    , 439 (5th Cir. 1979) (internal quotations omitted); see
    also Placente, 81 F.3d at 558.            “An attorney who cross-examines a
    former client inherently encounters divided loyalties.”                     United
    States v. Voigt, 
    89 F.3d 1050
    , 1078 (3d Cir. 1996); Lightbourne v.
    829 F.2d 1012
    , 1023 (11th Cir. 1987); see also Stephens,
    595   F.2d   at   1070;    Castillo,      504   F.2d   at    1245     (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, 504 F.2d
    at 1245.     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, 786 F.2d at 663-64.
          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
    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
          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
    Perillo’s trial began, and this is not a case of purely serial
    representation.     See Perillo I, 79 F.3d at 449.11
         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, 595 F.2d at 1070; see also
    United States v. Winkle, 
    722 F.2d 605
     (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, 580 F.2d at 1258 (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, 
    550 F.2d 1005
    , 1008-09 (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, 580 F.2d at
    1258; see also id. (“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
           In Perillo I, we characterized Skelton’s representation of
    Fletcher in California and Perillo at trial as “concurrent,” 79
    F.3d at 448, and “simultaneous,” id. at 449. 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.
    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
          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,
    81 F.3d at 558-59 (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, 79 F.3d at 447 (an actual conflict may exist “when one
    client would benefit by a person testifying and one client would be
    harmed by it.”); Nealy, 782 F.2d at 1365 (“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, 580 F.2d at
    1254.   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, 595 F.2d at 1070; see
    also Winkle, 
    722 F.2d 605
         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
    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, 
    580 F.2d 1251
    , 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 id. at 1254.     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.      Id. at 1257.    We expressly held that
    even the pre-trial conflict would be sufficient to support its
    decision reversing the convictions.        See id.   Counsel then went on
    to conduct a very limited cross-examination of his former clients.
    See id. at 1258.
         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
    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, 79 F.3d at 447.             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
              We   continue to believe that Skelton’s personal
    relationship with Fletcher confirms the reality of Skelton’s
    conflicted position. See Perillo I, 79 F.3d at 451 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, 65 F.3d at 1271-73.
    Instead, Cuyler applies only when there is an actual conflict
         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,
    722 F.2d at 609 (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. Id. 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.
    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, 65 F.3d   at 1267   (noting that Wood v. Georgia,
    101 S. Ct. 1097
     (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, 62 F.3d at 467-69 (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, 
    966 S.W.2d 661
    , 667-68
    (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
    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, 104 S. Ct. at 2064-
    67; Cuyler, 100 S. Ct. at 1718-19; Alvarez, 580 F.2d at 1255, 1258.
    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
    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, 104 S. Ct. at 2064-67;
    Cuyler, 100 S. Ct. at 1718-19; Alvarez, 580 F.2d at 1255,
           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, 580
    F.2d    at    1259    (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
    review that such representation was constitutionally deficient .
    See, e.g., United States v. Casiano, 
    929 F.2d 1046
     (5th Cir. 1991);
    786 F.2d 659
    .        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,   782   F.2d   at    1366.   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.
          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, 104 S. Ct. at
    2068.    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
    Beets, 65 F.3d at 1265.13
         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, 79 F.3d at 448.     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
              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, 504 F.2d at 1245;
    see also Strickland, 104 S. Ct. at 2067 (“[I]t is difficult to
    measure the precise effect on the defense of representation
    corrupted by conflicting interests.”); Johnson, 639 F.2d at 239
    (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, 639 F.2d at 239; see also Winkle, 722 F.2d at 609.
    “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, 580 F.2d at 1256-57.
         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, 104 S. Ct.
    at 2067. Defense counsel owes the client a duty of loyalty, which
    includes the “duty to avoid conflicts of interest.” See id. at
    2064.   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 Id. at 2067. 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.
    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, 65 F.3d at 1284 (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
          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.
    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, 62 F.3d at 470.         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, 504 F.2d
    at 1245 (“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, 782 F.2d at 1365 (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, 62 F.3d at 469.              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
    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,
    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, 782 F.2d at 1365.
         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, 79 F.3d at 450-51 & 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.
         The district court’s judgment granting Perillo’s 28 U.S.C.
    § 2254 petition for relief from her capital conviction and sentence
    is AFFIRMED and the cause is REMANDED for further proceedings
    consistent with this opinion.