Cuyler v. Sullivan

446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333, 1980 U.S. LEXIS 96

• Court: Supreme Court of the United States
• Decided: May 12, 1980
• Docket: 78-1832
• Status: Published

Opinions

Mr. Justice Powell

delivered the opinion of the Court.

The question presented is whether a state prisoner may obtain a federal writ of habeas corpus by showing that his retained defense counsel represented potentially conflicting interests.

I

Respondent John Sullivan was indicted with Gregory Carchidi and Anthony DiPasquale for the first-degree murders of John Gorey and Rita Janda. The victims, a labor official and his companion, were shot to death in Gorey’s second-story office at the Philadelphia headquarters of Teamsters’ Local 107. Francis McGrath, a janitor, saw the three defendants in the building just before the shooting. They appeared to be awaiting someone, and they encouraged McGrath to do his work on another day. McGrath ignored their suggestions. Shortly afterward, Gorey arrived and went to his office. McGrath then heard what sounded like firecrackers exploding in rapid succession. Carchidi, who was in the room where McGrath was working, abruptly directed McGrath to leave the building and to say nothing. McGrath hastily complied. When he returned to the building about 15 minutes later, the defendants were gone. The victims’ bodies were discovered the next morning.

Two privately retained lawyers, G. Fred DiBona and A. Charles Peruto, represented all three defendants throughout the state proceedings that followed the indictment. Sullivan had different counsel at the medical examiner’s inquest, but he thereafter accepted representation from the two lawyers retained by his codefendants because he could not afford to pay his own lawyer.¹ At no time did Sullivan or his lawyers object to the multiple representation. Sullivan was the first defendant to come to trial. The evidence against him was entirely circumstantial, consisting primarily of McGrath’s testimony. At the close of the Commonwealth’s case, the defense rested without presenting any evidence. The jury found Sullivan guilty and fixed his penalty at life imprisonment. Sullivan’s post-trial motions failed, and the Pennsylvania Supreme Court affirmed his conviction by an equally divided vote. Commonwealth v. Sullivan, 446 Pa. 419, 286 A. 2d 898 (1971).² Sullivan’s codefendants, Carchidi and DiPasquale, were acquitted at separate trials.

Sullivan then petitioned for collateral relief under the Pennsylvania Post Conviction Hearing Act, Pa. Stat. Ann., Tit. 19, § 1180-1 et seg. (Purdon Supp. 1979-1980). He alleged, among other claims, that he had been denied effective assistance of counsel because his defense lawyers represented conflicting interests. In five days of hearings, the Court of Common Pleas heard evidence from Sullivan, Carchidi, Sullivan’s lawyers, and the judge who presided at Sullivan’s trial.

DiBona and Peruto had different recollections of their roles at the trials of the three defendants. DiBona testified that he and Peruto had been “associate counsel” at each trial. App. 32a. Peruto recalled that he had been chief counsel for Carchidi and DePasquale, but that he merely had assisted DiBona in Sullivan’s trial. DiBona and Peruto also gave conflicting accounts of the decision to rest Sullivan’s defense. DiBona said he had encouraged Sullivan to testify even though the Commonwealth had presented a very weak case. Peruto remembered that he had not “want[ed] the defense to go on because I thought we would only be exposing the [defense] witnesses for the other two trials that were coming up.” Id., at 57a. Sullivan testified that he had deferred to his lawyers’ decision not to present evidence for the defense. But other testimony suggested that Sullivan preferred not to take the stand because cross-examination might have disclosed an extramarital affair. Finally, Car-chidi claimed he would have appeared at Sullivan’s trial to rebut McGrath’s testimony about Carchidi’s statement at the time of the murders.

The Court of Common Pleas held that Sullivan could take a second direct appeal because counsel had not assisted him adequately in his first appeal. App. to Pet. for Cert. 5F. The court did not pass directly on the claim that defense counsel had a conflict of interest, but it found that counsel fully advised Sullivan about his decision not to testify. Id., at 7F. All other claims for collateral relief were rejected or reserved for consideration in the new appeal.

The Pennsylvania Supreme Court affirmed both Sullivan’s original conviction and the denial of collateral relief. Commonwealth v. Sullivan, 472 Pa. 129, 371 A. 2d 468 (1977). The court saw no basis for Sullivan’s claim that he had been denied effective assistance of counsel at trial. It found that Peruto merely assisted DiBona in the Sullivan trial and that DiBona merely assisted Peruto in the trials of the other two defendants. Thus, the court concluded, there was “no dual representation in the true sense of the term.” Id., at 161, 371 A. 2d, at 483. The court also found that resting the defense was a reasonable tactic which had not denied Sullivan the effective assistance of counsel. Id., at 162, 371 A. 2d, at 483-484.

Having exhausted his state remedies, Sullivan sought habeas corpus relief in the United States District Court for the Eastern District of Pennsylvania. The petition was referred to a Magistrate, who found that Sullivan’s defense counsel had represented conflicting interests. The District Court, however, accepted the Pennsylvania Supreme Court’s conclusion that there had been no multiple representation. The court also found that, assuming there had been multiple representation, the evidence adduced in the state postconviction proceeding revealed no conflict of interest. App. to Pet. for Cert. 5C-8C.

The Court of Appeals for the Third Circuit reversed. United States ex rel. Sullivan v. Cuyler, 593 F. 2d 512 (1979). It first held that the participation by DiBona and Peruto in the trials of Sullivan and his codefendants established, as a matter of law, that both lawyers had represented all three defendants. The court recognized that multiple representation “ ‘is not tantamount to the denial of effective assistance of counsel. . . .' ” But it held that a criminal defendant is entitled to reversal of his conviction whenever he makes “ ‘some showing of a possible conflict of interest or prejudice, however remote. . . .’ ” Id., at 519, quoting Walker v. United States, 422 F. 2d 374, 375 (CA3) (per curiam), cert. denied, 399 U. S. 915 (1970). See also United States ex rel. Hart v. Davenport, 478 F. 2d 203, 210 (CA3 1973). The court acknowledged that resting at the close of the prosecutor's case “would have been a legitimate tactical decision if made by independent counsel.” ³ Nevertheless, the court thought that action alone raised a possibility of conflict sufficient to prove a violation of Sullivan's Sixth Amendment rights. The court found support for its conclusion in Peruto's admission that concern for Sullivan’s codefendants had affected his judgment that Sullivan should not present a defense. To give weight to DiBona’s contrary testimony, the court held, “would be to . . . require a showing of actual prejudice.” 593 F. 2d, at 522.⁴

We granted certiorari, 444 U. S. 823 (1979), to consider recurring issues left unresolved by Holloway v. Arkansas, 435 U. S. 475 (1978). We now vacate and remand.

II

At the outset, we must consider whether the Court of Appeals exceeded the proper scope of review when it rejected the Pennsylvania Supreme Court’s conclusion that DiBona and Peruto had not undertaken multiple representation. Petitioners claim that this determination by the Pennsylvania Supreme Court was a factfinding entitled to a presumption of correctness under 28 U. S. C. § 2254 (d).

Section 2254 (d) provides that “a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction . . . [and] evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct” unless the applicant for a federal writ of habeas corpus can establish one of the enumerated causes for exception. The Pennsylvania Supreme Court’s holding does not fall within this statute because it is a conclusion of law rather than a finding of fact.⁵

In Townsend v. Sain, 372 U. S. 293 (1963), the Court examined the distinction between law and fact as it applies on collateral review of a state conviction. The Townsend opinion, the precursor of § 2254 (d), noted that the phrase “issues of fact” refers “to what are termed basic, primary, or historical facts: facts 'in the sense of a recital of external events and the credibility of their narrators. . . ” 372 U. S., at 309, n. 6, quoting Brown v. Allen, 344 U. S. 443, 506 (1953) (opinion of Frankfurter, J.). Findings about the roles DiBona and Peruto played in the defenses of Sullivan and his codefendants are facts in this sense. But the holding that the lawyers who played those roles did not engage in multiple representation is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case. Cf. Brewer v. Williams, 430 U. S. 387, 403-404 (1977); Neil v. Biggers, 409 U. S. 188, 193, n. 3 (1972). That holding is open to review on collateral attack in a federal court.

The Court of Appeals carefully recited the facts from which it concluded that DiBona and Peruto represented both Sullivan and his codefendants. The court noted that both lawyers prepared the defense in consultation with all three defendants, that both advised Sullivan on whether he should rest his defense, and that both played important roles at all three trials. 593 F. 2d, at 518-519. In fact, the transcript of Sullivan’s trial shows that Peruto rather than DiBona rested the defense. App. 265a. We agree with the Court of Appeals that these facts establish the existence of multiple representation.

Ill

We turn next to the claim that the alleged failings of Sullivan’s retained counsel cannot provide the basis for a writ of habeas corpus because the conduct of retained counsel does not involve state action.⁶ A state prisoner can win a federal writ of habeas corpus only upon a showing that the State participated in the denial of a fundamental right protected by the Fourteenth Amendment. The right to counsel guaranteed by the Sixth Amendment is a fundamental right. Argersinger v. Hamlin, 407 U. S. 25, 29-33 (1972). In this case, Sullivan retained his own lawyers, but he now claims that a conflict of interest hampered their advocacy. He does not allege that state officials knew or should have known that his lawyers had a conflict of interest. Thus, we must decide whether the failure of retained counsel to provide adequate representation can render a trial so fundamentally unfair as to violate the Fourteenth Amendment.

This Court’s decisions establish that a state criminal trial, a proceeding initiated and conducted by the State itself, is an action of the State within the meaning of the Fourteenth Amendment. See Lisenba v. California, 314 U. S. 219, 236-237 (1941); Moore v. Dempsey, 261 U. S. 86, 90-91 (1923). The Court recognized as much in Gideon v. Wainwright, 372 U. S. 335 (1963), when it held that a defendant who must face felony charges in state court without the assistance of counsel guaranteed by the Sixth Amendment has been denied due process of law. Unless a defendant charged with a serious offense has counsel able to invoke the procedural and substantive safeguards that distinguish our system of justice, a serious risk of injustice infects the trial itself. Id., at 344; see Johnson v. Zerbst, 304 U. S. 458, 467-468 (1938). When a State obtains a criminal conviction through such a trial, it is the State that unconstitutionally deprives the defendant of his liberty. See Argersinger v. Hamlin, supra, at 29-33.⁷

Our decisions make clear that inadequate assistance does not satisfy the Sixth Amendment right to counsel made applicable to the States through the Fourteenth Amendment. A guilty plea is open to attack on the ground that counsel did not provide the defendant with “reasonably competent advice.” McMann v. Richardson, 397 U. S. 759, 770-771 (1970); see Tollett v. Henderson, 411 U. S. 258, 267 (1973). Furthermore, court procedures that restrict a lawyer’s tactical decision to put the defendant on the stand unconstitutionally abridge the right to counsel. Brooks v. Tennessee, 406 U. S. 605, 612-613 (1972) (requiring defendant to be first defense witness); Ferguson v. Georgia, 365 U. S. 570, 593-596 (1961) (prohibiting direct examination of defendant). See also Geders v. United States, 425 U. S. 80 (1976); Herring v. New York, 422 U. S. 853 (1975). Thus, the Sixth Amendment does more than require the States to appoint counsel for indigent defendants. The right to counsel prevents the States from conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance.

A proper respect for the Sixth Amendment disarms petitioner’s contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. We may assume with confidence that most counsel, whether retained or appointed, will protect the rights of an accused. But experience teaches that, in some cases, retained counsel will not provide adequate representation. The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection.⁸ Since the State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.⁹

IV

We come at last to Sullivan’s claim that he was denied the effective assistance of counsel guaranteed by the Sixth Amendment because his lawyers had a conflict of interest. The claim raises two issues expressly reserved in Holloway v. Arkansas, 435 U. S., at 483-484. The first is whether a state trial judge must inquire into the propriety of multiple representation even though no party lodges an objection. The second is whether the mere possibility of a conflict of interest warrants the conclusion that the defendant was deprived of his right to counsel.

A

In Holloway, a single public defender represented three defendants at the same trial. The trial court refused to consider the appointment of separate counsel despite the defense lawyer’s timely and repeated assertions that the interests of his clients conflicted. This Court recognized that a lawyer forced to represent codefendants whose interests conflict cannot provide the adequate legal assistance required by the Sixth Amendment. Id., at 481-482. Given the trial court’s failure to respond to timely objections, however, the Court did not consider whether the alleged conflict actually existed. It simply held that the trial court’s error unconstitutionally endangered the right to counsel. Id., at 483-487.

Holloway requires state trial courts to investigate timely objections to multiple representation. But nothing in our precedents suggests that the Sixth Amendment requires state courts themselves to initiate inquiries into the propriety of multiple representation in every case.¹⁰ Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial.¹¹ Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist.¹² Indeed, as the Court noted in Holloway, supra, at 485-486, trial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel. “An ‘attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.’ ” 435 U. S., at 485, quoting State v. Davis, 110 Ariz. 29, 31, 514 P. 2d 1025, 1027 (1973). Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.¹³

Nothing in the circumstances of this case indicates that the trial court had a duty to inquire whether there was a conflict of interest. The provision of separate trials for Sullivan and his codefendants significantly reduced the potential for a divergence in their interests. No participant in Sullivan’s trial ever objected to the multiple representation. DiBona’s opening argument for Sullivan outlined a defense compatible with the view that none of the defendants was connected with the murders. See Brief for Respondent 7. The opening argument also suggested that counsel was not afraid to call witnesses whose testimony might be needed at the trials of Sullivan’s codefendants. See id., at 8-9. Finally, as the Court of Appeals noted, counsel’s critical decision to rest Sullivan’s defense was on its face a reasonable tactical response to the weakness of the circumstantial evidence presented by the prosecutor. 593 F. 2d, at 521, and n. 10. On these facts, we conclude that the Sixth Amendment imposed upon the trial court no affirmative duty to inquire into the propriety of multiple representation.

B

Holloway reaffirmed that multiple representation does not violate the Sixth Amendment unless it gives rise to a conflict of interest. See 435 U. S., at 482. Since a possible conflict inheres in almost every instance of multiple representation, a defendant who objects to multiple representation must have the opportunity to show that potential conflicts impermissibly imperil his right to a fair trial. But unless the trial court fails to afford such an opportunity, a reviewing court cannot presume that the possibility for conflict has resulted in ineffective assistance of counsel. Such a presumption would preclude multiple representation even in cases where “ '[a] common defense . . . gives strength against a common attack.’ ” Id., at 482-483, quoting Glasser v. United States, 315 U. S. 60, 92 (1942) (Frankfurter, J., dissenting).

In order 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 performance.¹⁴ In Glasser v. United States, for example, the record showed that defense counsel failed to cross-examine a prosecution witness whose testimony linked Glasser with the crime and failed to resist the presentation of arguably inadmissible evidence. Id., at 72-75. The Court found that both omissions resulted from counsel’s desire to diminish the jury’s perception of a codefendant’s guilt. Indeed, the evidence of counsel’s “struggle to serve two masters [could not] seriously be doubted.” Id., at 75. Since this actual conflict of interest impaired Glasser’s defense, the Court reversed his conviction.

Dukes v. Warden, 406 U. S. 250 (1972), presented a contrasting situation. Dukes pleaded guilty on the advice of two lawyers, one of whom also represented Dukes’ codefendants on an unrelated charge. Dukes later learned that this lawyer had sought leniency for the codefendants by arguing that their cooperation with the police induced Dukes to plead guilty. Dukes argued in this Court that his lawyer’s conflict of interest had infected his plea. We found “ ‘nothing in the record . . . which would indicate that the alleged conflict resulted in ineffective assistance of counsel and did in fact render the plea in question involuntary and unintelligent.’ ” Id., at 256, quoting Dukes v. Warden, 161 Conn. 337, 344, 288 A. 2d 58, 62 (1971). Since Dukes did not identify an actual lapse in representation, we affirmed the denial of habeas corpus relief.

Glasser established that unconstitutional multiple representation is never harmless error. Once the Court concluded that Glasser’s lawyer had an actual conflict of interest, it refused “to indulge in nice calculations as to the amount of prejudice” attributable to the conflict. The conflict itself demonstrated a denial of the “right to have the effective assistance of counsel.” 315 U. S., at 76. Thus, a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. See Holloway, supra, at 487-491. But until a defendant shows that his counsel actively-represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. See Glasser, supra, at 72-75.¹⁵

C

The Court of Appeals granted Sullivan relief because he had shown that the multiple representation in this case involved a possible conflict of interest. We hold that the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance. Sullivan believes he should prevail even under this standard. He emphasizes Peruto’s admission that the decision to rest Sullivan’s defense reflected a reluctance to expose witnesses who later might have testified for the other defendants. The petitioner, on the other hand, points to DiBona’s contrary testimony and to evidence that Sullivan himself wished to avoid taking the stand. Since the Court of Appeals did not weigh these conflicting contentions under the proper legal standard, its judgment is vacated and the case is remanded for further proceedings consistent with this opinion.

So ordered.

1 DiBona and Peruto were paid in part with funds raised by friends of the three defendants. The record does not disclose the source of the balance of their fee, but no part of the money came from either Sullivan or his family. See United States ex rel. Sullivan v. Cuyler, 593 F. 2d 512, 518, and n. 7 (CA3 1979).

2 The Pennsylvania Supreme Court denied two petitions for reargument. See Commonwealth v. Sullivan, 472 Pa. 129, 180, 371 A. 2d 468, 492 (1977) (Pomeroy, J., concurring and dissenting). Meanwhile, Sullivan’s pro se petitions for federal habeas corpus relief were dismissed for failure to exhaust state remedies. See United States ex rel. Sullivan v. Cuyler, supra, at 515, and n. 4.

3 Indeed, the Court of Appeals noted that the Pennsylvania Supreme Court at first divided evenly on whether the Commonwealth’s evidence was sufficient to support a conviction. 593 F. 2d, at 521, n. 10.

4 Judge Garth, with whom Judges Adams and Rosenn joined, filed an opinion dissenting from the denial of a petition for rehearing en banc. Id,., at 524.

5 Petitioners must rely solely on the State Supreme Court’s holding because the state court that heard evidence on Sullivan’s petition for collateral relief did not decide whether defense counsel had represented conflicting interests. See supra, at 339. The State Supreme Court resolved that issue on the second direct appeal without the benefit of a trial court finding. Since we conclude that a determination of whether counsel undertook multiple representation is not a finding of fact, we need not decide whether the statements of an appellate court can be “determination[s] after a hearing on the merits of a factual issue” within the meaning of 28 U. S. C. §2254 (d). Compare Velleca v. Superintendent, 523 F. 2d 1040, 1041-1042 (CA1 1975) {per curiam), with Hill v. Nelson, 466 F. 2d 1346, 1348 (CA9 1972) {per curiam).

6 Although the petitioners did not present this state action argument to the Court of Appeals, both parties have briefed and argued it in this Court. Since resolution of this question of law is a “predicate to an intelligent resolution” of the question on which we granted certiorari, see Vance v. Terrazas, 444 U. S. 252, 258-259, n. 5 (1980), we must address it. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313, 320, n. 6 (1971). See generally R. Stern & E. Gressman, Supreme Court Practice §6.27, pp. 458-461 (5th ed. 1978).

7 See generally Fitzgerald v. Estelle, 505 F. 2d 1334, 1345-1346 (CA5 1974) (en banc) (Godbold, J., concurring in part and dissenting in part), cert. denied, 422 U. S. 1011 (1975); West v. Louisiana, 478 F. 2d 1026, 1032-1034 (CA5 1973), vacated and remanded, 510 F. 2d 363 (1975) (en banc).

8 See Polur, Retained Counsel, Assigned Counsel: Why the Dichotomy?, 65 A. B. A. J. 254,255 (1969).

9 As the Court of Appeals for the Third Circuit said in United States ex rel. Hart v. Davenport, 478 F. 2d 203, 211 (1973):

“A rule which would apply one fourteenth amendment test to assigned counsel and another to retained counsel would produce the anomaly that the nonindigent, who must retain an attorney if he can afford one, would be entitled to less protection. . . . The effect upon the defendant— confinement as a result of an unfair state trial — is the same whether the inadequate attorney was assigned or retained.”

10 In certain cases, proposed Federal Rule of Criminal Procedure 44 (c) provides that the federal district courts “shall promptly inquire with respect to . . . joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation.” See also ABA Project on Standards for Criminal Justice, Function of the Trial Judge §3.4 (b) (App. Draft 1972).

Several Courts of Appeals already invoke their supervisory power to require similar inquiries. See United States v. Waldman, 579 F. 2d 649, 651-652 (CA1 1978); United States v. DeBerry, 487 F. 2d 448, 452-454 (CA2 1973); United States v. Cox, 580 F. 2d 317, 321 (CA8 1978), cert. denied, 439 U. S. 1075 (1979); United States v. Lawriw, 568 F. 2d 98 (CA8 1977), cert. denied, 435 U. S. 969 (1978); cf. Ford v. United States, 126 U. S. App. D. C. 346, 348-349, 379 F. 2d 123, 125-126 (1967). As our promulgation of Rule 44 (c) suggests, we view such an exercise of the supervisory power as a desirable practice. See generally Schwarzer, Dealing with Incompetent Counsel — The Trial Judge’s Role, 93 Harv. L. Rev. 633, 653-654 (1980).

Although some Circuits have said explicitly that the Sixth Amendment does not require an inquiry into the possibility of conflicts, United States v. Steele, 576 F. 2d 111 (CA6) ( per curiam), cert. denied, 439 U. S. 928 (1978); United States v. Mavrick, 601 F. 2d 921, 929 (CA7 1979), a recent opinion in the Second Circuit held otherwise, Colon v. Fogg, 603 F. 2d 403, 407 (1979).

11 ABA Code of Professional Responsibility, DR 5-105, EC 5-15 (1976); ABA Project on Standards for Criminal Justice, Defense Function § 3.5 (b) (App. Draft 1971).

Seventy percent of the public defender offices responding to a recent survey reported a strong policy against undertaking multiple representation in criminal cases. Forty-nine percent of the offices responding never undertake such representation. Lowenthal, Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va. L. Rev. 939, 950, and n. 40 (1978). The private bar may be less alert to the importance of avoiding multiple representation in criminal cases. See Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn. L. Rev. 119, 152-157 (1978); Lowenthal, supra, at 961-963.

12 See United States v. Kidding, 560 F. 2d 1303, 1310 (CA7), cert. denied, 434 U. S. 872 (1977); United States v. Mandell, 525 F. 2d 671, 675-677 (CA7 1975), cert. denied, 423 U. S. 1049 (1976); Geer, supra n. 11, at 145-146.

13 Cf. United States v. Medel, 592 F. 2d 1305, 1312-1313 (CA5 1979); Foxworth v. Wainwright, 516 F. 2d 1072, 1076-1077 (CA5 1975).

14 A substantial majority of the Courts of Appeals require defendants who contend that multiple representation violated their Sixth Amendment rights to identify an actual conflict of interest. See United States v. Lovano, 420 F. 2d 769, 773 (CA2), cert. denied, 397 U. S. 1071 (1970); United States v. Atkinson, 565 F. 2d 1283, 1284-1285 (CA4 1977), cert. denied, 436 U. S. 944 (1978); Foxworth v. Wainwright, supra, at 1077; Thacker v. Bordenkircher, 590 F. 2d 640, 642 (CA6), cert. denied, 442 U. S. 912 (1979); United States v. Mandell, supra, at 677-678; United States v. Cox, 580 F. 2d, at 321-323; United States v. Kutas, 542 F. 2d 527, 529 (CA9 1976), cert. denied, 429 U. S. 1073 (1977); cf. United States v. Carrigan, 543 F. 2d 1053, 1056 (CA2 1976) (burden of proof shifts when trial court fails to inquire into possibility of conflict).

15 See Comment, Conflict of Interests in Multiple Representation of Criminal Co-Defendants, 68 J. Crim. L. & C. 226, 231-232 (1977),