Argelio Gonzales v. Brett Mize

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1875

A RGELIO G ONZALES,

Petitioner-Appellant,

v.

B RETT M IZE,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 06 CV 514—Theresa L. Springmann, Judge.

A RGUED A PRIL 2, 2009—D ECIDED M AY 11, 2009

Before B AUER and F LAUM, Circuit Judges, and K APALA ,

District Judge.Œ

K APALA, District Judge. Argelio Gonzales, an Indiana

state prisoner serving a 30-year sentence for various drug-

related offenses, challenges the district court’s denial of

Œ

The Honorable Frederick J. Kapala of the United States

District Court for the Northern District of Illinois, sitting by

designation.

2 No. 08-1875

his habeas corpus petition, 28 U.S.C. § 2254. On appeal,

Gonzales argues that he received ineffective assistance

of counsel as a result of his trial counsel’s conflicts of

interest. We affirm.

I. Background

Attorney Jay Hirschauer represented Gonzales at a jury

trial that began on April 27, 1998, and ended April 30, 1998.

The Indiana Court of Appeals summarized the facts

presented at trial as follows:

[O]n December 29, 1997, Indiana State Police and

Logansport Police Department officers conducted an

undercover sting operation in which Gonzales sold a

police informant a total of 1.16 grams of crack cocaine

during two transactions conducted inside Gonzales’

apartment. Police recorded the transactions on both

audio and video tape. A subsequent search of the

apartment, which Gonzales shared with two other

individuals, produced 12.35 grams of crack cocaine,

2.69 grams of powder cocaine, and 31.90 grams of

marijuana. Police also discovered an additional 9.39

grams of crack cocaine on the ground below a second

story bedroom window. The apartment was located

382 feet from Crayon Campus, a licensed child care

home.

The jury found Gonzales guilty of possession of cocaine

and dealing cocaine within 1,000 feet of school property,

possession of marijuana, and maintaining a common

nuisance. The court sentenced him to concurrent prison

No. 08-1875 3

terms of 30 years on each of the cocaine charges, and 18

months on each of the other two charges. On direct appeal,

the Indiana Court of Appeals upheld Gonzales’ convictions

and sentences. Gonzales did not file a petition for transfer

to the Indiana Supreme Court.

In an amended post-conviction petition filed on Novem-

ber 12, 2004, in Cass County circuit court, Gonzales raised

four arguments: (1) his trial counsel’s simultaneous

representation of him, codefendants Jorge Perez and Laura

Lapcheska, and exculpatory witnesses Arnaldo Garcia and

Larry Campbell violated his right to conflict-free counsel

and impaired his counsel’s representation of him; (2) his

counsel failed to present exculpatory evidence at trial;

(3) he was deprived of his right to a unanimous jury

verdict; and (4) his appellate counsel, who also was his

trial counsel, was ineffective in failing to raise the

non-unanimous verdict issue on direct appeal.

At the evidentiary hearing on Gonzales’ amended

post-conviction petition, Hirschauer agreed that he repre-

sented Lapcheska at the same time as Gonzales. Hirschauer

explained that an initial written plea agreement offered to

Lapcheska called for her to plead guilty to possession of

cocaine in exchange for a fifteen-year prison sentence. It

did not mention her testifying against Gonzales. According

to Hirschauer, the prosecutor never made an offer to

Lapcheska which required her to testify against Gonzales.

If such an offer was made, Hirschauer said that he would

not have communicated it to her but, rather, he would have

gotten out of the case due to a conflict of interest.

Lapcheska ultimately refused the first plea agreement.

4 No. 08-1875

After a month or two, Lapcheska accepted a second written

plea agreement for 20 years’ imprisonment. Like the first

plea agreement, it did not require her to testify. Hirschauer

said that the prosecution had no need for Lapcheska to

testify against Gonzales because the police had both

Gonzales and Lapcheska on videotape. After reviewing

copies of Lapcheska’s first and second plea agreements,

Hirschauer testified that neither required her to testify

against anyone. Hirschauer said that the second plea

agreement provided that she give a clean-up statement,

but he did not think that she ever did.1

Laura Lapcheska testified that she and Gonzales had

dated, engaged in a drug deal operation, and were

arrested at the same time. The first plea agreement

offered to her included a 15-year prison sentence and

required her to provide a clean-up statement. According to

Lapcheska, Hirschauer explained to her and to her

parents that a clean-up statement entailed testimony

about her involvement with drug dealing and that she

would be exempt from any prosecution other than mur-

der. When asked whether Hirschauer’s explanation of the

clean-up statem ent included a requirem ent to

testify against Gonzales, Lapcheska responded, “Well, to

tell what happened, he explained it as I would have to

1

As this opinion later explains, the clean-up statement provi-

sion gave Lapcheska the option to reveal any criminal activity

she may have committed prior to December 29, 1997, in ex-

change for the State of Indiana’s agreement not to prosecute

her for such criminal activity. The record does not indicate

whether a clean-up statement is given under oath.

No. 08-1875 5

mention, to name, and to me, to mention anybody’s name

would be giving testimony against them . . . So yes.”

Lapcheska said that once Hirschauer explained the

clean-up statement, she decided not to accept the first

plea agreement. Lapcheska testified further that she later

accepted a 20-year plea agreement that did not require

a clean-up statement.

On cross-examination, after being shown the first

written plea agreement, Lapcheska acknowledged that it

contained no reference to a clean-up statement. She added

that she did not recall reading the agreement. She did

remember that Hirschauer discussed the plea agreement

with her and her parents. Lapcheska agreed that it was

possible that she was confused about when the conversa-

tion between her, Hirschauer, and her parents took

place, but said that she remembered that she did not

accept the first plea agreement because she refused to

testify against Gonzales.

Arlita Morehead, Lapcheska’s mother, testified that

while she did not remember who explained the clean-up

statement, she said that it was explained that Lapcheska

would have to testify against Gonzales. Morehead could

not remember whether Hirschauer was even present

during this alleged explanation.

Gonzales testified that Hirschauer never told him that

he also represented Lapcheska, Perez, Campbell, and

Garcia. Gonzales said Hirschauer never discussed any

conflict of interest with him.

The first and second plea agreements offered to

Lapcheska were admitted as exhibits at the hearing. The

6 No. 08-1875

first plea agreement had no provision for Lapcheska to

testify against anyone or to give a clean-up statement. The

second plea agreement, entered on March 27, 1998, pro-

vided in pertinent part:

a. The Defendant agrees to plead guilty to the infor-

mation charging Dealing cocaine within 1000’ of

school property.

b. The State of Indiana agrees to dismiss the informa-

tion charging count 1, [and] 3 and any criminal

activity prior to 12/29/97 disclosed by defendant

in a clean-up statement given by 3/30/98.

c. The Court will impose as a sentence in this case

the following:

1. Twenty years imprisonment in Indiana Depart-

ment of Corrections.

The Cass County Circuit Court found that neither plea

agreement required Lapcheska to testify against anyone.

The Court interpreted the second plea agreement to

mean that the charges against Lapcheska in counts 1, 3, and

4 would be dismissed, and that the State of Indiana

agreed not to file charges against Lapcheska for any

criminal activity that she committed prior to December 29,

1997 and disclosed in a clean-up statement.2 Based on these

findings of fact, the circuit court held that the evidence

was insufficient to support a charge of ineffective assis-

tance of trial counsel based on conflicts of interest arising

2

The plea agreement actually refers to “count 1 [and] 3,” not 1,

3, and 4.

No. 08-1875 7

out of Hirschauer’s representation of various defendants.

The court did, however, set aside Gonzales’ conviction

for dealing cocaine on the basis that he was deprived of

his right to a unanimous jury verdict.

Before the Indiana Court of Appeals, Gonzales argued

that Hirschauer had a conflict of interest due to his joint

representation of him, Lapcheska, Perez, Garcia, and

Campbell. With respect to Lapcheska, Gonzales argued

that a conflict of interest arose when Hirschauer

negotiated a plea agreement for Lapcheska that called for

her to testify against Gonzales. Citing Cuyler v. Sullivan, 446

U.S. 335 (1980), Gonzales maintained that because he

showed an actual conflict of interest, he did not need to

demonstrate prejudice, that is, that there was a rea-

sonable probability that, but for the ineffective

assistance, the result of the proceedings would have been

different. See Strickland v. Washington, 466 U.S. 668, 687-88

(1984).

The Indiana Court of Appeals set out the standards for

ineffective assistance of counsel stated in both Strickland,

466 U.S. at 687, and Cuyler, 446 U.S. at 348, and then noted

that Gonzales raised an actual conflict of interest argu-

ment only as to Hirschauer’s dual representation of

Gonzales and Lapcheska. The court found no actual

conflict of interest because its review of the record demon-

strated that the terms of the plea agreements that

Hirschauer negotiated for Lapcheska did not require

Lapcheska to testify against Gonzales, and because

Lapcheska never gave a clean-up statement. The Court

concluded that Gonzales failed to demonstrate an actual

8 No. 08-1875

conflict of interest.3 Consequently, the Indiana Court of

Appeals affirmed the circuit court’s ruling on Gonzales’

post-conviction petition.

Gonzales filed a petition to transfer to the Indiana

Supreme Court stating that the question presented on

transfer was:

Argelio Gonzales’ attorney, Jay Hirschauer, tried to

help the State prosecute Mr. Gonzales by negotiating

a plea agreement for Mr. Gonzales’ co-defendant

which called for the co-defendant to testify against

Mr. Gonzales. The Court of Appeals erred in finding

that this did not create a conflict of interest.

The Indiana Supreme Court denied transfer.

Gonzales then petitioned for a writ of habeas corpus

under § 2254 in which he raised the three issues that

had been advanced on his direct appeal4 and a claim of

ineffective assistance of counsel. The district court deter-

3

The Indiana Court of Appeals also noted that the circuit

court was entitled to reject Gonzales’ and Lapcheska’s testi-

mony that Hirschauer did not inform them of the dual represen-

tation, in favor of Hirschauer’s contrary testimony. The Court

did not, however, explain how this finding was significant to

the alleged constitutional violation.

4

Gonzales’ three arguments on his direct appeal were: (1) the

evidence was insufficient to prove that the sale of cocaine

was conducted within 1,000 feet of a school; (2) the trial court

erred by taking judicial notice of an amendment to a statute

and so instructing the jury; and (3) the State should have

been required to prove his knowledge that he was within

1,000 feet of a school.

No. 08-1875 9

mined that although Gonzales attempted to present

multiple reasons for counsel’s ineffectiveness, the only

issue exhausted in the Indiana courts, and therefore

properly considered on habeas corpus review, was the

issue presented in the petition to transfer set out above.

The district court concluded that, “[b]ecause Gonzales has

not demonstrated that the State Court was unreasonable

in its determination of his claim that his attorney was

ineffective because of a conflict of interest, this ground

presents no basis for habeas corpus relief.” After the

district court denied Gonzales a certificate of appeal-

ability, we issued a certificate only on the question of

whether Gonzales received ineffective assistance of

counsel.

II. Analysis

On appeal, Gonzales contends that the district court

erred when it rejected his claim that he is being held in

violation of the Sixth Amendment to the United States

Constitution because he was denied effective assistance

of counsel when his trial attorney simultaneously repre-

sented him, Lapcheska, and Campbell. Gonzales main-

tains that the conflicts affected the adequacy of his at-

torney’s representation and that, under such circum-

stances, prejudice is presumed.

Our review of a district court’s denial of a petition for

a writ of habeas corpus is de novo. Julian v. Bartley, 495

F.3d 487, 491 (7th Cir. 2007). We review the decision of

the last state court that substantively adjudicated each

claim. Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009).

10 No. 08-1875

We must evaluate Gonzales’ petition under the

Antiterrorism and Effective Death Penalty Act (AEDPA),

specifically 28 U.S.C. § 2254(d). See Knowles v. Mirzayance,

556 U.S. ___, ___, 129 S. Ct. 1441, 1418 (2009). Under that

provision, federal habeas relief may not be granted with

respect to a claim which was adjudicated on the merits

in the state court unless the adjudication:

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an unrea-

sonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Mixed questions of law and fact, such

as ineffective assistance of counsel, are subject to review

under § 2254(d)(1). Porter v. Gramley, 112 F.3d 1308, 1313

(7th Cir. 1997). Factual determinations made by a

state court are presumed to be correct unless rebutted

by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Petitioner has represented that he is proceeding under

§ 2254(d)(1).

A. Conflict of Interest as a Result of Representing

Campbell

The State of Indiana argues that the district court prop-

erly determined that Gonzales procedurally defaulted his

claim based on Hirschauer’s dual representation of him

No. 08-1875 11

and Campbell when he failed to make this argument in

his petition to transfer to the Indiana Supreme Court.

We agree.

A federal court may not grant an application for a writ

of habeas corpus from a prisoner being held in state

custody unless the petitioner has exhausted his available

state remedies prior to seeking federal habeas relief. See

28 U.S.C. § 2254(b)(1)(A). “This so-called exhaustion-

of-state-remedies doctrine serves the interests of fed-

eral-state comity by giving states the first opportunity to

address and correct alleged violations of a petitioner’s

federal rights.” Lieberman v. Thomas, 505 F.3d 665, 669

(7th Cir. 2007). Fair presentment contemplates that the

operative facts and the controlling legal principles of the

federal claim be submitted to the state court through one

complete round of state-court review, either on direct

appeal or in post-conviction proceedings. Malone v. Walls,

538 F.3d 744, 753 (7th Cir. 2008). “A habeas petitioner

who has exhausted his state court remedies without

properly asserting his federal claim at each level of state

court review has procedurally defaulted that claim.” Lewis

v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004). Whether a

claim is procedurally defaulted is a question of law this

court reviews de novo. Malone, 538 F.3d at 753.

Gonzales concedes that his conflict of interest claim

based on Hirschauer’s dual representation of him and

Campbell was not included in the “question presented

on transfer” section of his petition for transfer to the

Indiana Supreme Court, but maintains that he made

that argument in his petition for transfer, thereby alerting

12 No. 08-1875

the Indiana Supreme Court that he was raising the is-

sue. We disagree.

Gonzales included a description of Hirschauer’s

dual representation of him and Campbell in the “Back-

ground and Prior Treatment of Issues” section of his

petition for transfer but made no substantive argument

that an actual conflict of interest arose out of that dual

representation. The passing references to Campbell did

not sufficiently alert the Indiana Supreme Court that

Gonzales was arguing that there was an actual conflict of

interest as a result of Hirschauer’s dual representation of

Gonzales and Campbell. See Stevens v. McBride, 489 F.3d

883, 894 (7th Cir. 2007) (“[T]he failure to alert the state

court to a complaint about one aspect of counsel’s assis-

tance will lead to a procedural default.”). The question

presented on transfer to the Indiana Supreme Court was

clearly limited to a claim of ineffective assistance of

counsel growing out of Hirschauer’s dual representation

of Gonzales and Lapcheska. Thus, we agree with the

district court’s determination that this issue is pro-

cedurally defaulted.5

5

Gonzales also argues that the Indiana Court of Appeals

incorrectly applied Strickland to his claim concerning

Hirschauer’s representation of Campbell when in fact he did

advance an actual conflict of interest argument with respect to

the representation of Campbell which would be controlled

by Cuyler. After reviewing Gonzales’ post-conviction appellate

brief, we disagree that he advanced a Cuyler claim before the

Indiana Court of Appeals. Moreover, even assuming arguendo

that Gonzales did make a Cuyler argument before that court

(continued...)

No. 08-1875 13

Where, as here, a petitioner has procedurally defaulted

a claim, he may obtain federal habeas relief only if he

can show either cause and prejudice for the default

(i.e., some external obstacle prevented petitioner from

presenting his claim to the state courts) or that a failure

to grant him relief would result in a fundamental miscar-

riage of justice (i.e., a claim that the constitutional depriva-

tion probably has resulted in a conviction of one who

is actually innocent). Blintz v. Bertrand, 403 F.3d 859, 863

(7th Cir. 2005). Gonzales does not make either of these

arguments. For these reasons, the claim of an actual

conflict of interest arising from Hirschauer’s dual represen-

tation of Gonzales and Campbell is procedurally defaulted.

B. Conflict of Interest as a Result of Representing

Lapcheska

One of the basic duties that counsel owes to a criminal

defendant is a duty of loyalty, including a duty to avoid

conflicts of interest. Strickland, 466 U.S. at 688. “[M]ultiple

representation does not violate the Sixth Amendment

unless it gives rise to a conflict of interest.” Cuyler, 446

U.S. at 348. A lawyer representing codefendants

whose interests conflict cannot provide adequate legal

assistance. Id. at 345.

5

(...continued)

with regard to Hirschauer’s representation of Campbell, he

clearly did not include that argument in his petition for

transfer to the Indiana Supreme Court, and therefore, as

explained above, the argument is procedurally defaulted.

14 No. 08-1875

To establish ineffective assistance of counsel under

Stickland, a petitioner must establish (1) that his attor-

ney’s representation fell below an objective standard of

reasonableness, and (2) that there is a reasonable prob-

ability that, but for the ineffective assistance, the result of

the proceedings would have been different. Strickland, 466

U.S. at 687-88. In contrast, under Cuyler, “to establish a

violation of the Sixth Amendment, a defendant who raised

no objection at trial must demonstrate that an actual

conflict of interest adversely affected his lawyer’s perfor-

mance.” Id. at 348. While a defendant who shows that

a conflict of interest adversely affected his counsel’s

performance need not show prejudice to prevail, “until a

defendant shows that his counsel actively represented

conflicting interests, he has not established the constitu-

tional predicate for his claim of ineffective assistance.”

Id. at 349-50. An adverse effect is established by showing

that “but for the attorney’s actual conflict of interest, there

is a reasonable likelihood that counsel’s performance

somehow would have been different.” Stoia v. United

States, 22 F.3d 766, 771 (7th Cir. 1994) (quotation marks

omitted).

Gonzales argues that the district court erred in finding

that the Indiana Court of Appeals was reasonable in

determining that under Cuyler no actual conflict of interest

arose out of Hirschauer’s dual representation of

Gonzales and Lapcheska. Gonzales first argues that there

was an actual conflict of interest because the first plea

agreement required Lapcheska to testify against Gonzales.

Gonzales bases this argument not on the text of the first

plea agreement, which clearly has no such requirement,

but, rather, on Lapcheska’s and Morehead’s testimony

No. 08-1875 15

that they understood the first plea agreement to con-

tain such a requirement. Gonzales contends that no

court has addressed whether their testimony should be

disbelieved in favor of Hirschauer’s contrary testimony.

Gonzales’ argument lacks merit. Lapcheska testified

that the clean-up statement was in the first plea agree-

ment, and not the second, and that Hirschauer’s explana-

tion of the clean-up statement provision in the first plea

agreement caused her to understand that Lapcheska had

to testify against Gonzales. Morehead only remembered

that someone explained that Lapcheska would have to

testify against Gonzales, but did not remember if

Hirschauer was present or when the explanation occurred.6

The Indiana Court of Appeals affirmed the Cass County

Circuit Court’s conclusion that the first plea agree-

ment offered did not include a clean-up statement. This

factual determination was reasonable and constituted a

rejection of Lapcheska’s and Morehead’s testimony that

the first plea agreement contained a clean-up statement

which Lapcheska understood to require her testimony

against Gonzales. The Indiana Court of Appeals was

entitled to reject Lapcheska’s and Morehead’s testimony

on this point in favor of Hirschauer’s testimony. Doing

so was reasonable especially in view of the fact that the

first plea agreement had no such provision written into

it and it appears, as indicated by the second plea agree-

ment, that when a clean-up statement is contemplated

6

Gonzales has not argued that Lapcheska and Morehead were

mistaken and that the clean-up statement explanation was

actually in connection with the second plea agreement.

16 No. 08-1875

by the parties it is expressly stated in the written agree-

ment. Thus, Gonzales has failed to present clear and

convincing evidence to rebut the Indiana Court of Ap-

peals’ conclusion that the first plea agreement did not

require Lapcheska to testify against Gonzales. In addi-

tion, although not reached by the Indiana courts, we fail

to see how Gonzales would be able to satisfy the second

prong of Cuyler when there is nothing in the record to

show that Hirschauer did anything more than convey

an offer from the State to Lapcheska and it is undis-

puted that she did not accept it.

Gonzales also makes the argument that the Indiana

Court of Appeals implicitly found that the first plea

agreement required testimony against Gonzales when it

wrote “Lapcheska turned down the first plea, and she

later accepted a second plea agreement with the sen-

tence increased to twenty years but with no requirement

to testify against Gonzales.” Gonzales asserts that the

choice of the coordinating conjunction “but” implies

that the Indiana Court of Appeals believed that some

requirement to testify was removed from the first plea

agreement. This argument was made for the first time

in Gonzales’ reply brief and as a result is waived. See

Simpson v. Office of the Chief Judge of Will County, 559

F.3d 706, 719 (7th Cir. 2009) (“Arguments raised for the

first time in a reply brief are waived.” (quotation marks

omitted)).7

7

Waiver aside, the sentence quoted by Gonzales is from the

“Facts” section of the Indiana Court of Appeals’ decision and it

(continued...)

No. 08-1875 17

Next, Gonzales maintains that the second plea agree-

ment itself clearly and convincingly demonstrates that

the Indiana Courts incorrectly concluded that the second

plea agreement contained no requirement that Lapcheska

testify against Gonzales. Gonzales argues that the

moment Lapcheska was offered the second plea agree-

ment requiring her to give a clean-up statement,

Hirschauer was conflicted. Gonzales reasons that

Hirschauer’s duty of loyalty to Lapcheska required him

to counsel her as to the benefits of the plea agreement.

However, if Lapcheska took the second plea agreement

in exchange for its benefits, Lapcheska would have to

divulge information that would inculpate Hirschauer’s

other client, Gonzales, because whatever criminal history

Lapcheska might have “come clean” about was “intimately

entwined” with Gonzales and would necessarily involve

prior criminal activity that she engaged in with Gonzales.

Gonzales’ argument is flawed in that it assumes that the

clean-up statement in the second plea agreement requires

Lapcheska to disclose more than her own criminal

7

(...continued)

describes Lapcheska’s testimony concerning the second plea

agreement. This sentence was not a finding of fact and, in any

event, cannot fairly be construed as a finding that the first

plea agreement contained a requirement that Lapcheska

testify against Gonzales in view of the fact that the Indiana

Court of Appeals explicitly concluded in the “Discussion and

Decision” section of its decision that “the record demonstrates

that the requirement to testify was not written into either

plea agreement.”

18 No. 08-1875

activity in order to receive immunity from prosecution

for such activity. It does not. In addition, while the

second plea agreement gave Lapcheska the option of

providing a clean-up statement, it did not require it.

Moreover, the clean-up statement contemplated

disclosure of her criminal activity prior to December 29,

1997, the date of the crimes with which she and Gonzales’

were charged. Gonzales has not pointed to any evidence

indicating that Hirschauer was actively representing

conflicting interests at the time Lapcheska accepted the

second plea agreement, given that there is no evidence

in this record suggesting that Hirschauer knew that

Lapcheska could provide information about joint criminal

activity involving her and Gonzales which occurred

prior to December 29, 1997. See United States v. Hopkins,

43 F.3d 1116, 1119 (6th Cir. 1995) (“A conflict is hypotheti-

cal where . . . the attorney does not in fact know of the

conflict from the dual representation. Unless the attorney

knows of the conflict, he or she cannot make a choice

between alternative courses of action depending on

which client is to be favored.”).

When asked at oral argument what evidence there

was that Hirschauer had knowledge of any pre-Decem-

ber 29, 1997, joint criminal activity of Gonzales and

Lapcheska, Gonzales’ counsel’s response was two-fold.

First, he said Hirschauer testified that Gonzales and

Lapcheska were lovers and that their criminal history was

intertwined. Second, Gonzales’ counsel said that

Hirschauer’s knowledge of Gonzales’ and Lapcheska’s

prior criminal activity could be inferred from

Hirschauer’s testimony that he would not have com-

No. 08-1875 19

municated to Lapcheska a plea agreement that contem-

plated her testimony against Gonzales. According to

counsel, this suggests that Hirschauer was aware of

some prior criminal activity about which Lapcheska

could testify.

Our review of Hirschauer’s testimony, however, reveals

nothing indicating Hirschauer’s knowledge of any pre-

December 29, 1997, joint criminal activity of Gonzales

and Lapcheska. While Hirschauer testified that he knew

that Gonzales and Lapcheska were lovers, he said

nothing which indicated that he was aware of any joint

criminal activity on their part that occurred prior to

December 29, 1997. To conclude that Gonzales and

Lapcheska had engaged in prior criminal activity just

because they were lovers is just speculation.

Hirschauer’s comment indicating that he would not

communicate to Lapcheska any plea agreement

requiring her testimony against Gonzales did not show

that he knew Lapcheska could implicate Gonzales in

their pre-December 29, 1997, criminal activity. When

Hirschauer made that comment, he clearly was referring

to a plea agreement that contemplated Lapcheska testify-

ing against Gonzales in the pending drug case, rather

than about their prior criminal activity. In our view,

Hirschauer’s statement that he would not have communi-

cated to Lapcheska a plea agreement that required

her testimony against Gonzales combined with the fact

that he actually presented the plea agreement to

Lapcheska, if anything, demonstrates that he had no

knowledge of any prior joint criminal activity of his

20 No. 08-1875

clients. Therefore, Gonzales has failed to rebut with clear

and convincing evidence the Indiana Court of Appeals’

determination that the second plea agreement did not

require Lapcheska to testify against Gonzales and has

failed to overcome the presumption of correctness. See

28 U.S.C. § 2254(e)(1). Consequently, Gonzales has not

shown that the Indiana Court of Appeals’ determination

that he failed to demonstrate an actual conflict of interest

was contrary to, or involved an unreasonable applica-

tion of, Cuyler. See 28 U.S.C. § 2254(d)(1).

Gonzales’ last contention on appeal is that the Indiana

Court of Appeals (1) ignored the main focus of his argu-

ment, that is, that the requirement to testify against

Gonzales was unstated and that the second plea agree-

ment’s clean-up statement provision created a conflict

even if there was no written requirement to testify; and

(2) incorrectly added a new factor to the Cuyler test, that is,

that parties can waive an actual conflict of interest simply

by being placed on notice of the joint representation.8

8

Gonzales also argues that the Cass County Circuit Court did

not even recognize the test set out in Cuyler, let alone apply it

correctly. As noted above, we review the decision of the last

court to address Gonzales’ contentions on the merits. See Watson,

560 F.3d at 690. The Indiana Court of Appeals’ order is the

operative decision and it clearly applied the Cuyler test. More-

over, while it is true that the circuit court did not cite Cuyler, a

state court’s decision is not contrary to clearly established

federal law merely because the court does not cite federal law.

See Bell v. Cone, 543 U.S. 447, 455 (2005) (“Federal courts are not

(continued...)

No. 08-1875 21

With respect to Gonzales’ first point, the Indiana

Court of Appeals did not ignore Gonzales’ arguments

concerning the alleged actual conflict of interest arising

out of the dual representation of Gonzales and

Lapcheska; as we have explained it rejected them.

While the Indiana Court of Appeals analysis was brief

and focused on the fact that a requirement to testify was

not written into either plea agreement, § 2254(d) deference

still applies to perfunctory or summary dispositions.

See Watson, 560 F.3d at 692; Hennon v. Cooper, 109 F.3d

330, 335 (7th Cir. 1997) (holding that the criterion “is

whether the determination is at least minimally con-

sistent with the facts and circumstances of the case”

regardless of any deficiency in the discussion of the

reasons).

8

(...continued)

free to presume that a state court did not comply with con-

stitutional dictates on the basis of nothing more than a lack of

citation.”); Early v. Packer, 537 U.S. 3, 8 (2002) (holding that a

state court does not have to cite to Supreme Court

“cases—indeed, [§ 2254(d)] does not even require awareness of

[the Supreme Court] case, so long as neither the reasoning

nor the result of the state-court decision contradicts them”).

With regard to the conflict-of-interest issue, the circuit court

found no requirement in either plea agreement that Lapcheska

testify against Gonzales and, therefore, found insufficient

evidence of an actual conflict of interest. As such, even though

it did not cite Cuyler, the circuit court concluded that the

first requirement of the Cuyler test—demonstrating an actual

conflict of interest—was not met.

22 No. 08-1875

In any event, even if the Indiana Court of Appeals did

not address Gonzales’ specific argument, we would then

apply de novo review under § 2254(a). See Aleman v.

Sternes, 320 F.3d 687, 690 (7th Cir. 2003). Were we to

engage in de novo review under § 2254(a), this court

would reject, for the reasons stated above, Gonzales’

argument that compliance with the clean-up statement

provision of the second plea agreement would have

necessarily inculpated Gonzales and in turn, created an

actual conflict of interest growing out of Hirschauer’s

dual representation of Gonzales and Lapcheska.

We also would conclude under § 2254(a) review that

Gonzales has failed to show that the alleged actual

conflict of interest adversely affected the adequacy of

Hirschauer’s representation of Gonzales. In his brief,

Gonzales argues that at the moment Hirschauer encour-

aged Lapcheska to “come clean,” his “basic strategic

decisions” about his representation of Gonzales were

affected. Gonzales does not, however, explain what

those basic strategic decisions were or how counseling

Lapcheska to accept the second plea agreement affected

those decisions. When asked at oral argument what

Hirschauer would have done differently had he not

been laboring under the alleged actual conflict of

interest, Gonzales’ counsel said that he would not have

counseled Lapcheska to accept the plea agreement

which contemplated her trading information for le-

niency. This response does not satisfy the second

element of the Cuyler test. Gonzales fails to explain how

the clean-up statement provision in Lapcheska’s second

plea agreement would adversely affect Hirschauer’s

No. 08-1875 23

representation of Gonzales in light of the fact that

Lapcheska’s opportunity to provide information in ex-

change for immunity lasted only 3 days and lapsed ap-

proximately one month before Gonzales’ trial. Gonzales

does not demonstrate how in any other way an actual

conflict of interest adversely affected Hirschauer’s repre-

sentation of Gonzales.

With respect to Gonzales’ second point, although the

Indiana Court of Appeals did note that the circuit court

was entitled to reject Gonzales’ and Lapcheska’s testi-

mony indicating that Hirschauer did not inform them of

the dual representation, the Court did not rely upon a

waiver by Gonzales of Hirschauer’s purported actual

conflict of interest. Nevertheless, any improper finding

concerning a waiver of an actual conflict of interest

would not take away from the Indiana Court of Appeals’

conclusion that Gonzales failed to meet the first prong of

the Cuyler test. Therefore, this court rejects Gonzales’

arguments that the Indiana Court of Appeals’ decision

was contrary to, or an unreasonable application of,

clearly established federal law.

III. Conclusion

For the foregoing reasons, the judgment of the District

Court for the Northern District of Indiana is A FFIRMED.

5-11-09