John S. Freund v. Robert A. Butterworth, Attorney General

165 F.3d 839, 1999 U.S. App. LEXIS 809, 1999 WL 24620

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 22, 1999
• Docket: 93-5317
• Status: Published

Opinions

HATCHETT, Chief Judge:

Appellant-petitioner John Freund appeals the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 1985, a Florida state court jury convicted Freund of first-degree murder for the 1984 stabbing death of Ralph Walker. The crux of Freund’s petition was that he was deprived of his right under the Sixth and Fourteenth Amendments to effective assistance of trial counsel because his lawyers labored under significant conflicts of interest that stemmed primarily from their prior representation of Freund’s non-testifying, separately-tried codefendant, John Trent. Addressing first impression issues concerning the applicable rules of law and standard of review, and finding no actual conflict and no adverse effect, we affirm.

I.HISTORICAL FACTS¹

A. Background on the Six Persons Present at the Murder Scene

1. John Freund

Before 1983, John Freund practiced oncology, the treatment of cancer, in Palm Beach, Florida. He enjoyed an excellent reputation in the medical community for both his professional expertise and personal demeanor. Unknown to most of his colleagues, Freund suffered from severe bouts of depression. In June 1983, he attempted suicide at home, injecting himself with large doses of narcotics. A police officer found him unconscious, and subsequent psychological tests and CAT scans of his brain indicated significant brain damage due to a lack of oxygen. Among Freund’s symptoms were impaired memory, reduced intelligence, inappropriate behavior, poor judgment, lack of foresight and planning, amenability to others’ influences, and a reduced ability to reason and appreciate the consequences of his actions. Consequently, health care officials suspended, and never reinstated, Freund’s hospital privileges.

2. John Trent

Before the suicide attempt, Freund befriended John Trent, the son of one of his patients. Although Freund and Trent’s friendship soured at some point, they rekindled it after Freund’s suicide attempt. Trent promised to help Freund regain his hospital privileges. Trent enjoyed a reputation of wielding significant, though illicit, influence in the Palm Beach community.

Trent owned a legitimate interior design business called House of Draperies, but his main occupation was a full-time criminal. He involved himself heavily in drugs (both use and sale), violence and prostitution. When tenants of his several rental properties failed to pay their rent on time, Trent had them assaulted. Trent kept more than one residence (and girlfriend) in the Palm Beach area. Around the time of the murder, he lived in an apartment at the Palm Beach Hotel. Although the building had a doorper-son, front desk attendants and security guards, Trent usually answered his door waving a loaded .45 caliber pistol. When friends visited, he often had them use cocaine with him immediately before they did anything else.

Trent claimed to have ties with the local police through his work as a confidential informant. He bragged that he had the West Palm Beach Police Department and Palm Beach County Sheriffs Office “in his back pocket.” He wielded significant influence over several other persons, using them to further his drug dealings, work as prostitutes, entertain him, “take out” those who gave him trouble and perform various other tasks. Four such persons were at Trent’s apartment,-along with Freund, on the night of the murder: three testified at Freund’s trial and the fourth was the victim.²

3.Eleanor Mills

The first of these persons was Eleanor Mills. Mills ran a female escort service and frequently used drugs. In early 1984, an undercover police officer arrested her after she attempted to sell him a kilogram of cocaine. While in pretrial detention, Mills met someone who suggested that Trent, then a stranger to Mills, could help her with the drug charges. In April 1984, several weeks before the murder, the court released Mills on bail, and she arranged to meet Trent at his apartment. In his usual practice, Trent greeted Mills with a gun in hand and they immediately consumed cocaine. Impressing Mills with his power in the community, Trent offered help in at least two ways. First, he referred Mills to the law firm (Foley, Colton and Duncan, P.A.) that represented him. Second, he discussed having her serve as an informant with the local police.

4.Lisa Angelilli

Mills’s daughter, Lisa Angelilli, also testified at Freund’s trial. At the time that Mills and Trent became associated, Angelilli was sixteen years old.³ Like her mother, she frequently used drugs. Mills told Angelilli about Trent. She anxiously awaited the opportunity to meet and use drugs with a man of his influence.

5.Bill Daniell

Bill Daniell was the third material witness at Freund’s trial. An ex-convict, Daniell worked at House of Draperies as an electrician and performed several “odd jobs” for Trent, including drug trafficking. He had known Trent for over thirteen years, and Trent often introduced him as his bodyguard and “hit man.”

6.Ralph Walker

Finally, Ralph Walker was the stabbing victim. Walker performed various tasks for Trent. He obtained drugs for Trent, collected rent on various properties that Trent owned and assaulted whomever Trent wanted harmed. Like Trent, Walker had a violent temperament.

B. The Murder⁴

1. Preceding Events

Most of the events surrounding the murder of Walker occurred at Trent’s Palm Beach Hotel apartment. Sometime in the afternoon or early evening of Tuesday, July 24, 1984, Mills and Angelilli arrived at Trent’s apartment.⁵ Trent had invited Mills and Angelilli to come over so that he could use cocaine with them and meet Angelilli. Of course, Trent answered the door with his .45 pistol in hand. The entrance to the apartment was through the bedroom. A hallway led from the bedroom to a dining room and living room area (the “main room”) that the kitchen adjoined. In the main room, they spent the next several hours consuming cocaine. Trent also drank bourbon. He remained armed with the .45 in a shoulder holster; a .357 magnum pistol also lay on the table where they sat.

Later in the evening, Angelilli announced that she wanted marijuana. Eager to impress Angelilli, Trent called Walker and told him to bring marijuana to the apartment. About thirty minutes later, Walker arrived. The party continued: all four snorted cocaine; Angelilli and Walker smoked marijuana; Trent drank bourbon; and Walker drank tequila. Walker drank and snorted more than the others.

At some point, Trent and Walker started to discuss past exploits. Trent and Walker became increasingly loud. The escalating level of tension made Mills very nervous. Between 10 p.m. and 11 p.m. that night, Walker whispered to Angelilli that he wanted to have sex with her. When she ignored him, he got upset, jumped around and yelled obscenities at her. Mills implored Trent to calm Walker down, but Trent assured her that Walker was just “playing around.”

Walker, however, became more enraged. He retrieved an aluminum baseball bat from Trent’s bedroom and slammed it onto the table. Walker announced to everyone that he was going to have sex with Angelilli, and that Trent would just have to ignore it. Walker then picked up the .357 magnum from the table and moved toward Angelilli with the gun in one hand and the bat in the other. Angelilli and Mills became frightened and tried to hide behind Trent. Trent knocked the .357 magnum out of Walker’s hand. When Walker reached for the .45 in Trent’s shoulder holster, Trent pulled it out first and fired it toward Walker. Walker dived over a couch. The bullet hit a dining room chair, but missed Walker. Trent walked around the couch, pointed the gun at Walker’s head and threatened to kill Walker.

Keeping the .45 pointed at Walker, Trent instructed Mills to get a pair of handcuffs out of his kitchen closet. As Mills retrieved the handcuffs, she noticed that the closet contained guns, knives and pills. Trent instructed Mills to hold the gun while he handcuffed Walker’s hands behind his back. Trent then told Angelilli to bring him the Gerber fighting knife from the closet. With the knife in one hand and gun in the other, Trent proceeded to kick Walker, lunge at (but not stab) him with the knife and repeatedly yell threats, including “You’re dead Ralph Walker! You’re dead ... and you’re goin’ home to your mama in a box.” He also gagged Walker with a towel and strapped duct tape around Walker’s mouth.

At this point, Freund entered the picture. Trent called Freund, Daniell and Bruce Fullerton, another one of his henchmen, for assistance. Trent asked Freund to come over with his “little black bag” to sedate Walker. Trent told Daniell to come over and bring his “piece.” He instructed Fullerton to bring a steamer trunk, a sledge hammer and a chain saw. Freund and Daniell followed Trent’s instructions, but Fullerton ignored them.

Freund arrived first, about fifteen minutes after the phone call. To sedate (but not kill) Walker as Trent ordered, Freund injected Walker with magnesium sulfate from his bag.⁶ Daniell arrived shortly after Freund, while Freund was still injecting Walker.⁷ When Daniell got close to Walker, he heard him mumble through the duet tape, “Don’t let them kill me.” After multiple injections, Freund ran out of magnesium sulfate. Walker was still conscious.

Trent found some diazepam in his kitchen closet.⁸ He gave it to Freund along with a bottle of vodka. Freund crushed the pills into a powder that he dissolved in the vodka. Freund, Trent and Daniell all took turns injecting Walker with the mixture. After an injection, Walker would lose consciousness for a short time. When he revived, they would inject him again.

These gruesome events overcame Mills and Angelilli, who retreated from the main room to Trent’s bedroom. They could still hear Walker groaning in agony, and they begged Trent to let them leave. Trent refused, but he and a hotel doorman escorted them to another apartment within the hotel. Approximately twenty minutes later, when Mills and Angelilli returned, Trent told Mills, “We had to take him out. He knows too much and we had to run an air bubble to his vein.”

Freund and Trent had indeed injected air into Walker, but it did not kill him. Freund expressed his surprise to Daniell and Trent that the air injections had not caused an embolism. After watching Freund and Trent repeatedly pull the plunger all the way out of a syringe stuck in Walker’s arm and pop the plunger back in to the hilt, Daniell decided that he could not watch anymore and joined the women in the bedroom. Freund stayed in the main room with Walker, while Trent split time between the main room and the bedroom.

2. The Stabbing

From the bedroom, Daniell saw Freund pick up Trent’s Gerber fighting knife as if “he had found a new toy” and walk in the direction of Walker. Trent entered the bedroom. Daniell asked him what Freund was doing, and Trent replied that Freund “was probably fucking Ralph in the ass.”⁹

At one point, Angelilli walked to the bathroom. On her way, she could see into the main room. Although she could not see Walker because he was on the floor behind the couch, she could see Freund. Freund had the knife in his hand. He was laughing and making up-and-down stabbing motions behind the couch. Although Angelilli apparently could not see where the knife landed, she was positive that Freund was stabbing Walker. Horrified, Angelilli ran into the bathroom and vomited before returning to the bedroom.

Shortly thereafter, when Trent, Daniell, Mills and Angelilli were in the bedroom, Freund walked into the room with blood on his shirt and said, “It’s over.” Trent told Freund that he could not leave wearing the bloody shirt and instructed him to change into one of Trent’s shirts. After washing his hands and putting on a clean shirt, Freund started to leave. Freund warned Mills and Angelilli that they had not seen him that night. On his way out the door, he told Trent, “It was a pleasure doing business with you. Call me again.” He telephoned about twenty minutes later to inform Trent that he had arrived home safely. Trent let Mills and Angelilli go home. Daniell stayed with Trent through the next morning. At one point, Daniell saw Walker’s body in the living room in a pool of blood.

3. Disposing of Walker’s Body

The next day, Wednesday, Daniell drove Trent to House of Draperies to pick up Trent’s van. They drove the van to the Palm Beach Hotel to retrieve Walker’s bicycle that he had left in front of the building. After unloading the bicycle at House of Draperies, Trent and Daniell drove to the apartment of one of Trent’s girlfriends. They made arrangements for the girlfriend and Fullerton to purchase a steamer trunk that they would use to remove Walker’s body from Trent’s apartment.

Later that day, Mills picked Trent up from House of Draperies and drove him to the Palm Beach Hotel apartment. Fullerton soon joined them, and the three began to clean up the apartment. They, however, left Walker’s body on the floor behind the couch. Trent and Fullerton discussed removing the body in a steamer trunk. Freund arrived at the apartment around 2 a.m. Thursday morning. Trent, Freund and Mills sat around the dining room table snorting cocaine, drinking and talking for several hours. They discussed how to dispose of Walker’s body. During the entire night, Freund acted oblivious to Walker’s corpse that sprawled close to the dining room table. Freund left the apartment sometime early Thursday morning.

The body remained in Trent’s main room throughout much of Thursday. During this time, Trent threatened to kill Mills and An-gelilli if they said anything to the police. He also reminded them that he had the local police under his control. Similarly, Trent threatened to kill Daniell’s family if he did not help Trent conceal the body. At one point, Trent told Angelilli that Walker had deserved to die because he knew too much.

Late Thursday afternoon, after Freund and his friends left the apartment, Fullerton arrived with a sledgehammer and a steamer trunk that he had purchased with Trent’s girlfriend. Trent used the sledgehammer to break Walker’s legs so that his body would fit in the trunk. Once Trent closed Walker’s body in the trunk, Trent, Fullerton, Mills and another friend of Trent carried it to Trent’s van and drove to House of Draperies.

C. Police Investigation

1. Mills’s and Angelilli’s Cooperation and the Police’s Searches

The morning of Saturday, July 28, 1984, Mills and Angelilli decided to call the police.¹⁰ They related the events surrounding the stabbing and told the police where to find Walker’s body. They did not tell the police about Daniell’s involvement. Later that day, the police discovered Walker’s body in Trent’s van at House of Draperies, beginning their investigation.

Also, based on Mills’s and Angelilli’s statements, the police obtained and executed search warrants for House of Draperies and Trent’s Palm Beach Hotel apartment. At House of Draperies, the police found: Walker’s badly decomposed body in the steamer trunk in Trent’s van; boxes of empty beer cans and liquor bottles; trash bags containing syringes, needle wrappers, empty drug capsules and four empty ampules of magnesium sulfate. They also discovered Trent’s and Fullerton’s fingerprints on the van.

At Trent’s apartment, the police found: duet tape; a loaded .45 pistol in a shoulder holster; a loaded .357 magnum pistol; a pair of handcuffs; bottles of diazepam that Freund had prescribed for Trent; a sledgehammer; a dented aluminum baseball bat; a dining room chair with a bullet lodged in it; a Gerber fighting knife with human blood on the blade; a bag of blood-soaked towels; and an empty beer can with Mills’s fingerprints.

2. Autopsy

Shortly after the searches, the coroner performed an autopsy on Walker’s body. The coroner found five stab wounds straight into Walker’s chest and one into his lower back that extended upward and inward toward the heart. The coroner concluded that these stab wounds penetrated Walker’s heart and, therefore, caused his death. The coroner also noticed handcuff injuries to Walker’s wrists and duet tape over his mouth. Walker’s body fluids revealed high levels of cocaine, alcohol and a derivative of diazepam. The corner did not find any needle marks, but advanced decomposition in one area suggested that Walker may have received multiple injections.

3. Trent’s Flight and Daniell’s Cooperation

After the police discovered Walker’s body, Trent fled to Illinois. Daniell eventually approached the police about his involvement and- corroborated Mills and Angelilli’s story. In addition to the physical evidence found at Trent’s apartment and House of Draperies, the police had three material witnesses willing to testify about Walker’s murder. The State Attorney’s Office did not charge Mills, Angelilli or Daniell with any crime resulting from their involvement in the murder or disposition of Walker’s corpse.¹¹

D. The Law Firm

For thirteen years, Trent had extensive dealings with the law firm of Foley, Colton and Duncan, P.A. (the “law firm”) — the law firm that would eventually represent Freund at trial. In the early 1970s, Robert Foley began representing Trent in various criminal and civil matters, as did Roger Colton and Douglas Duncan after they joined the law firm. Overall, until May 1984, the law firm represented Trent in various cases and capacities ranging from civil collection actions involving House of Draperies and Trent’s hotels to criminal matters.¹² Additionally, during this time, the law firm and Trent’s relationship often exceeded that of attorney and client. Trent and his employees came to the office on a daily basis, sharing the law firm’s copier and other office equipment. Trent also performed interior design work for the law firm, Foley, Colton, and Duncan’s parents.

Trent referred many of his employees and friends, including Mills, to the law firm! Approximately two months before the stabbing, Mills met with Colton at Trent’s Palm Beach Hotel apartment for less than an hour and explained to him the facts and circumstances of her cocaine trafficking charge. Colton and Mills discussed the possibility of her providing assistance to the police. Colton and Mills’s professional relationship began and ended with this meeting.¹³

The law firm represented Trent until May-1984, approximately three months before the stabbing. A year earlier, on June 19, 1983, Trent allegedly brandished a gun on a public street and threatened to kill two persons. The alleged facts were that Trent was speeding recklessly through a residential area and screeched to a halt. A woman with the last name of Vana came out of her apartment fearing that Trent had struck a neighborhood child. Vana asked Trent why he was driving like that and told him that small children played in the area. Trent told her to mind her own business or she would get hurt. When Vana’s husband approached, Trent pulled out a handgun from a holster in his waistband and asked her if she “wanted this one or the other,” motioning to a gun that he supposedly had in his back waistband area. A few days later, advised of the assault incident, the police stopped Trent in his car. The officers discovered diazepam in Trent’s possession. The police arrested Trent for, and the State Attorney’s Office charged him with, possession of diazepam and aggravated assault. The State also initiated a forfeiture proceeding against Trent’s automobile in relation to the possession charge.¹⁴

The law firm, primarily Colton, initially represented Trent in both the aggravated assault and diazepam possession prosecutions, but it withdrew as counsel no later than May 2, 1984, prior to their resolutions. The Honorable Marvin Mounts, Palm Beach County Circuit Judge, presided over these prosecutions. Colton and Duncan also represented Trent in the forfeiture proceeding, also before Judge Mounts, through final judgment that issued prior to May 1984.

Although Trent had retained David Roth as substitute defense counsel in his aggravated assault and diazepam possession eases, he called Colton from Illinois after the stabbing for advice. Trent did not discuss the facts of the murder, and Colton offered no advice other than suggesting that Trent was in a lot of trouble and he should surrender to the authorities. Roth continued to represent Trent throughout his murder trial.

Freund went to the law firm for advice soon after the stabbing.¹⁵ At that first meeting, Freund confessed to Foley that he stabbed Walker to death. The law firm agreed to defend him, and Freund surrendered to the authorities on July 31, 1984. Ten days after Freund’s arrest, authorities arrested Trent in Illinois. The court detained Trent and Freund without bail, and on August 23, 1984, a grand jury indicted both for the first-degree murder of Walker.¹⁶

E. Prosecution of Freund and Trent

1. Press Conference

Two or three days after the court arraigned Freund, Foley called a press conference to announce that Freund would rely on an insanity defense. Formally, however, the law firm did not file a notice of intent to rely on the insanity defense until nearly a year later, June 4, 1985.¹⁷ By that time, Freund had admitted not only to Foley, but also to Duncan that he killed Walker. Freund had also told his psychiatrist that he stabbed Walker because Trent told him to do it.

2. Discovery and Freund’s Motion to Sever

The clerk of court assigned Trent and Freund’s murder case to Judge Mounts, the same judge who had earlier presided over Trent’s assault, drug possession and forfeiture proceedings. After several hearings to determine Freund’s competency to stand trial, Judge Mounts declared him competent on February 5, 1985. Soon thereafter, two conflict-of-interest issues arose during pretrial proceedings.

The first conflict issue arose at a deposition on April 16, 1985. Mills refused to answer any questions that Duncan asked on the ground that her prior consultation with Colton regarding the cocaine trafficking charge had established an attorney-client relationship with the law firm. Mills, however, had already disclosed, to Trent’s lawyer, Roth, in Duncan’s presence any information that she had conveyed to Colton during that consultation. Nevertheless, Mills remained silent.

The second conflict issue arose less than a month later. On May 13, 1985, the law firm filed a motion to sever on behalf of Freund, asking the district court to order the State Attorney’s Office to prosecute Freund and Trent in separate trials.¹⁸ As grounds, the law firm averred that

[tjhere exists a concern that because DR. FREUND’s attorneys have represented MR. TRENT in the past and on unrelated matters to the instant case, that there may be a potential conflict. Specifically, if in a joint trial, MR. TRENT[ ] was to testify in his own behalf, his former attorneys would be in a position of cross-examining him.... [A] severance should be granted ... to avoid even the remotest scintilla of an appearance of impropriety. This is not to say that an appearance of impropriety exists.

The law firm concluded the motion with a statement that it was requesting an informal written opinion addressing the possible conflict from the Florida Bar. Although Judge Mounts eventually severed Freund’s and Trent’s trials, the record does not disclose whether he ever issued a ruling on this (Freund’s) motion.

3. Florida Bar Opinion

Duncan wrote the letter to the Florida Bar on the same day that the law firm filed the motion to sever. After providing a factual background, Duncan asked two related questions about the law firm’s prior representation of Trent.¹⁹ First, Duncan essentially conceded that the law firm would have to withdraw from representing Freund if the court tried Freund and Trent jointly:

[Tjhere may an appearance of impropriety under [Florida’s rules of professional conduct] in being up against a former client. Specifically, if in a joint trial, Mr. Trent elects to testify on his own behalf, ... his former attorneys[ j would clearly be put in a position of cross-examining him_ [Ijt may in the eyes of some raise the appearance of impropriety.

But because he believed that severance was “likely,” Duncan asked

whether ... there are any ethical problems in arguing in defense of Dr. Freund that at the time of the alleged homicide he was obviously insane, and this insanity was known by Mr. Trent, and accordingly Mr. Trent manipulated Dr. Freund to commit the murder for he, Trent. Simply stated, is there anything ethically wrong with arguing in a separate trial, that a former client [Trentj is responsible for a homicide as opposed to the new client [Freundj.

As to Mills’s refusal to answer questions that the law firm posed on behalf of Freund, Duncan inquired whether “there [is] anything by virtue of the one initial consultation with Ms. Mills, that would preclude my law firm from examining and' questioning Ms. Mills concerning her knowledge of the homicide[.]”

Duncan received an advisory staff opinion from the Bar on May 31, 1985 (the “Bar opinion”). Regarding the law firm’s prior representation of Trent, although the Bar opinion did not offer a direct answer to either question that Duncan advanced, it did outline some relevant considerations:

[W]here the matter [for which the attorney represented the former client] is so unrelated, as to either substance or time, that the attorney could not have acquired information [from] the former client which could be used to his detriment, the attorney may ethically undertake representation adverse to his former client. If such related information was acquired during the course of former representation, [the rules of professional conduct] would prohibit the proposed representation even if a severance of the former and present clients’ cases were granted. Therefore the responsibility of the former client in the present case could only be argued where no detrimental information was obtained in the previous distant or unrelated representation.

As to whether the law firm could question Mills about the homicide, the Bar opinion suggested that it could as long as its questioning did not reveal any secrets or confidences between the law firm and Mills. As it did with Trent, the Bar opinion cautioned that if Mills’s consultation with the law firm was either close in time or related to the homicide, the law firm could not ethically question Mills concerning the homicide.

On June 3, 1985, relying on the Bar opinion, Duncan moved the court to order Mills to submit to the law firm’s deposition. Duncan assured Judge Mounts that the law firm would “maintain the confidences and secrets that may have been disclosed by Ms. Mills to Mr. Colton during their initial consultation on the unrelated criminal charge.” He went on to state that because the murder occurred after the consultation, the law firm’s prior relationship with her would not prohibit it from questioning Mills about her “observations and opinions concerning the alleged homicide.” Mills submitted to the law firm’s deposition on June 24,1985.

4. Severance Hearing

While Freund’s motion to sever was still pending, on August 20, 1985, Trent filed his own motion to sever on two different grounds. Through discovery, Trent’s lawyer, Roth, learned that Freund had confessed to his psychiatrist that although Freund stabbed Walker, Trent made him do it. Thus, the first ground of Trent’s motion was that if Freund chose not to testify, the admission in a joint trial of Freund’s out-of-court confession that inculpated Trent would violate Trent’s rights under the Sixth Amendment’s Confrontation Clause. See Bruton v. United States, 391 U.S. 123, 135-36, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Judge Mounts ruled that to avoid a Bruton problem, he would simply exclude this statement if Freund and Trent were tried jointly.

Trent’s second ground for severance involved the law firm’s relationship with him. Trent alleged that the law firm had acquired confidential information that it could use against him at a joint trial. Despite his own pending motion to sever, Freund initially joined the State in opposing Trent’s requested severance.²⁰

Judge Mounts conducted a hearing on Trent’s severance motion on September 3, 1985. The court opened the hearing to the public, and it drew significant media attention. The first witness that Roth called to the stand was Trent. Trent initially detailed the attorney-client relationship that had developed between the law firm and himself. Trent testified that during the course of the representation, he had confided his personal secrets and business affairs to both Foley and Colton. Trent told the law firm about his participation in multiple criminal activities involving drugs and prostitution. Even after Trent had retained Roth to handle his drug and assault prosecutions, he called Col-ton from Illinois after the stabbing. Trent explained that at the time of the telephone call, he still considered Colton to be his attorney.

Trent’s testimony then moved from his professional relationship with the law firm to a more personal and lurid relationship. He had considered Foley and Colton to be close friends in addition to his lawyers. Beyond discussing his criminal activities, Trent would recount to both lawyers the details of his sexual exploits. Trent even showed Foley and Colton a number of “sexual devices,” including whips, chains and handcuffs, at his Palm Beach Hotel apartment. Trent also contended that he used cocaine in Foley’s and Colton’s presence, including in their law offices.

According to Trent, Foley and Colton did more than just listen to Trent’s tales of deviancy. Trent made several serious allegations against both lawyers. First, he claimed to have delivered cocaine to their friends, sometimes at the law firm. He further suggested that he had provided both lawyers with prostitutes on many occasions, often as payment for legal services. Indeed, Trent allegedly provided Foley with “so many [prostitutes] over the years ... it [was] almost a daily occurrence.” He alleged that the two attorneys had attended and participated in many of his “sex parties” involving cocaine and prostitutes. For example, on one occasion, Trent and Foley allegedly invited several prostitutes to the offices after the close of business. One of them accidentally tripped the police-monitored burglar alarm. When the police arrived, Trent recounted that he had to answer the door because Foley was naked.

After Trent concluded his testimony, Roth called Colton to the stand. Colton “categorically^]” “unequivocally and totally” denied “each and every accusation” that Trent had levied.²¹ To avoid being forced off of the case, Foley did not cross-examine Colton or testify. Although both Duncan and the assistant state attorney declined to examine Colton, the court did question him, eliciting that Colton was an upstanding member of the Florida Bar, enjoyed a solid reputation for fairness and professionalism, and had served on several bar committees involving issues ranging from legal ethics to judicial appointments.

During arguments that followed the conclusion of testimony, Duncan announced that Freund was joining Trent’s request for a severance. Duncan’s reason for changing his mind was not Trent’s inflammatory allegations against the law firm. Rather, Duncan feared that the court’s exclusion of Freund’s out-of-court confession to his psychiatrist in a joint trial would completely gut the law firm’s theory of the case, that is, that Trent controlled Freund and ordered him to kill Walker. Roth’s only problem with a joint trial, in contrast, was the law firm’s cross-examination of its former client “if and when Trent takes the stand.” Ultimately, Judge Mounts granted the severance.

5. Trent’s Trial

The court tried Trent first. Duncan attended the trial and observed the testimony of Mills, Angelilli and Daniell, the three principal fact witnesses for the State. Neither Freund nor Trent testified. The trial resulted in a hung jury, and the court declared a mistrial. In a plea bargain, the State Attorney’s Office reduced the first degree murder charge in exchange for Trent’s pleading guilty to second-degree murder. The court sentenced Trent to a 17-year sentence, and prison authorities have since released him.²²

6. Freund’s Trial

After Trent pleaded guilty to second-degree murder, the State Attorney’s Office offered the same deal to Freund. The law firm advised Freund that the defense of insanity was successful 30 percent or less of the time. Rejecting the offer on behalf of Freund, Foley stated to the assistant state attorney that the defense was holding out for a verdict of manslaughter or not guilty by reason of insanity. Thus, the State brought Freund to trial on October 23, 1985, and Duncan and Foley served as his trial lawyers.

i. State’s Case-in-Chief

The State first introduced most of the physical evidence through the testimony of various police officers who conducted the investigation. The prosecution also presented the results of Walker’s autopsy through the testimony of the conducting pathologist. He confirmed that although Walker’s body fluids revealed high levels of cocaine; alcohol and a derivative of diazepam, stabbing caused Walker’s death.

Through the testimony of Mills, Angelilli and Daniell, the State presented the details of the murder. With only minor inconsistencies, the three witnesses essentially recounted the events leading up to and following Walker’s stabbing as described in section I, part B, of this opinion. They all testified that Freund was present at Trent’s apartment the night of the murder and that, at Trent’s direction, he injected Walker first with magnesium sulfate, then with mixtures of vodka and diazepam, and finally with air.

Angelilli testified that Freund made stabbing motions in the direction of Walker’s body. Because Walker’s body was behind a couch, Angelilli conceded that she did not see the knife actually strike Walker’s body. Daniell testified that he saw Freund pick up Trent’s knife and approach Walker. All three witnesses testified that Freund was alone in the main room with Walker for a short time, and that afterward he came into the bedroom with blood on his shirt. After describing their roles in cleaning up and moving Walker’s body, the witnesses each concluded their direct testimony through recounting how and why they went to the police.

Duncan brought out many of the inconsistencies of each witness’s testimony on cross-examination. For example, he elicited from both Mills and Angelilli that when they originally went to the police, they omitted altogether any mention of Daniell. Mills and Angelilli explained that they were afraid to inculpate him because they thought he was a hit man who would kill them. Only after Daniell went to the police did Mills and An-gelilli acknowledge his presence at the murder scene.

While cross-examining Mills, Duncan asked a series of questions about how she came to know Trent and about her prior arrest for trafficking cocaine. Duncan had her recount the basic background of that pending charge and Trent’s assistance from shortly after her arrest until her one and only meeting with Colton. Duncan stopped short of asking Mills about her consultation with Colton.²³ Mills also admitted that she, like everyone else except Freund, used cocaine on the night of the stabbing.

On cross-examination of each of the three witnesses, Duncan elicited personal facts in an effort to impeach their credibility. For instance, he questioned Mills about “Port 0 Call for Men,” the escort service she ran. Similarly, when cross-examining Angelilli, Duncan elicited that just prior to the trial, she had worked as a topless dancer. And, Daniell admitted on cross-examination that he was an ex-felon and attested that he “would never go back to prison except on a slab.”

ii. Freund’s Insanity Defense

After the prosecution rested its case, Duncan and Foley presented Freund’s insanity defense. Through the testimony of several witnesses, they demonstrated that Freund had a good reputation as an oncologist before his suicide attempt. They developed the facts surrounding the suicide attempt, focusing on the changes in Freund’s personality that brain damage had caused. Colleagues of Freund testified that he seemed to be a different person with severe memory problems. The defense also presented the testimony of several experts who explained the symptoms of brain damage, including susceptibility to suggestion and a lack of independent judgment. Many of these experts had evaluated Freund shortly after his suicide attempt to determine whether or not he was fit to return to the practice of medicine.

During its cross-examination of Freund’s witnesses and through the testimony of the witnesses it called on rebuttal, the prosecution attempted to demonstrate that Freund knew what he was doing when he stabbed Walker and knew that it was wrong. When cross-examining one of the psychiatrists who Foley called, the State elicited that Freund had told the psychiatrist that he remembered the events of the night of the murder. Specifically, the jury heard the psychiatrist confirm that Freund had admitted to remembering the following: Trent called him to come over and kill Walker. When he arrived at Trent’s apartment, Walker was lying on the floor in handcuffs. He injected Walker with diazepam knowing that it would not kill Walker. He stabbed Walker several times with a letter opener. He did not know Walker’s identity when he stabbed him. He first stabbed Walker in the back, but then turned him over to stab him in the heart because, as a doctor, he knew that was the way “to really kill a person that is in handcuffs.”

Neither Duncan nor Foley objected to this line of questioning. Judge Mounts did instruct the jury, on more than one occasion, that Freund’s statements to psychiatrists may be treated “as evidence of mental condition only and not as evidence of the factual truth” that they may contain. Freund did not testify.

iii. State’s Rebuttal

The prosecution called its own expert witness on rebuttal, a psychiatrist who the court had appointed to determine Freund’s competency to stand trial. This psychiatrist opined that. Freund was feigning most of his mental problems. He claimed that although the stabbing may have been the result of an “irresistible impulse,” Freund definitely knew that he was killing Walker and knew that what he was doing was wrong.²⁴ The witness also commented on the reports that psychiatrists who had examined Freund to determine his competency to reten to the medical practice had prepared. He interpreted those reports as indicating that Freund’s condition was improving and that Freund might have been able to return to the practice of medicine. He suggested that the psychiatrists who testified on Freund’s behalf exaggerated his condition to support the insanity defense.

The last witness that the State called on rebuttal, and the last witness of the entire trial, was James Stob, a friend of Freund. Stob testified that Freund denied killing Walker when Stob visited him on jail. At no time did the State call Trent to testify.

iv. Closing Arguments

The closing arguments focused on Freund’s insanity at the time of the stabbing. The assistant state attorney argued that Freund knew exactly what he was doing and that he falsely tried to convince his psychiatrists that he was insane. Duncan focused on Freund’s brain damage and the supporting testimony of psychiatrists, arguing that Freund either did not know what he was doing when he stabbed Walker or, if he did know what he was doing, did not know that it was wrong. Duncan asserted that two victims existed in the case, Walker and Freund. He argued that Trent knew that Freund’s condition left him susceptible to influence and that Trent accordingly manipulated and controlled Freund like a robot, making him kill Walker.

At one point, Duncan turned the argument over to Foley. After contending that reasonable doubt existed as to Freund’s sanity, Foley argued to the jury that Trent ordered Freund

to do something. He did it, and because of the stressful situation, Ralph Walker is dead. We don’t really know who did it. I always wondered whether Trent did it and told this poor guy, “You did it. My colleagues here are telling you you did it.”

The same girls were lying when they told the police they didn’t even tell them about Daniell in the sworn statement. The woman is going to get fifteen years mandatory without parole lifted for her if she cooperates, but she lies, she is in trouble and she lied about Daniell and Daniell got the word and he figured he better get in on the train also so he runs down to the police station Tuesday, I think it was, after the murder, and gives his statement and they say okay.

Remember, he lied about that so we don’t know what happened there. We can’t guess what happened. We can’t guess this man into the electric chair and we can’t guess him into 25 years in the penitentiary without parole.

Foley then returned to the insanity defense. In the State’s final closing argument, in addition to refuting the insanity defense, it addressed Foley’s statements: “Now, Mr. Foley tells you we are not even sure if Freund stabbed Walker. That’s ridiculous.”

v. Verdict and Sentence

After receiving their instructions from Judge Mounts, the jury deliberated for a total of three hours over two days. On November 1, 1985, the jury returned a verdict of guilty of murder in the first degree. At a subsequent penalty phase, the jury recommended a life sentence through a vote of ten to two.²⁵ Judge Mounts accepted the recommendation and sentenced Freund to life in prison without the possibility of parole for twenty-five years, the minimum sentence that Freund could receive.

F. Direct Appeal

The law firm represented Freund on direct appeal. On grounds unrelated to this appeal, both the Fourth District Court of Appeal and the Supreme Court of Florida affirmed Freund’s conviction. See Freund v. State, 506 So.2d 437 (Fla.App. 4 Dist.1987) (per curiam), aff'd, 520 So.2d 556 (Fla.1988).

II. COLLATERAL REVIEW PROCEEDINGS

A. State Court

After his direct appeal failed, Freund obtained new counsel — the same lawyers who represent Freund before us — to attack collaterally his conviction in state and federal court. On March 29, 1990, Freund filed a motion to vacate the judgment and sentence, pursuant to Florida Rule of Criminal Procedure 3.850 (the “3.850 motion”), in the state circuit court that tried and sentenced him. Freund argued that the law firm’s conflicts of interest denied Freund his constitutional right to the effective assistance of trial counsel. As sources of the conflicts, Freund pointed to the law firm’s relationship with Trent and Mills. The court conducted an evidentiary hearing on April 25, 1991 (the “3.850 hearing”).²⁶

1. Trent’s Private Investigator

In Ms case-in-chief, Freund’s counsel called two witnesses to the stand. The first witness was Thomas Dick. Dick was an auxiliary patrolman for the Riviera Beach Police Department and a friend of Trent. Dick testified that Trent asked him to investigate the background of Vana, the alleged victim of Trent’s 1983 aggravated assault charge. Dick denied ever conducting any investigation, but admitted to obtaining the police report and meeting -with Trent and Colton separately to discuss the case. Neither Trent nor Colton asked Dick to do any investigative work with respect to the diazepam possession charge.

Moving to the events following the stabbing, Dick testified that he learned that Trent was a fugitive in the murder investigation and that Freund had surrendered. Dan-iell went to see Dick shortly thereafter. Darnell told Dick that “he was [at Trent’s apartment] when whatever happened happened.” Dick convinced Daniell to turn himself in to the Palm Beach Police Department. At some point, while Trent was still in Illinois, Dick permitted the police to record calls made to Dick’s residence. The police recorded several conversations between Dick and Trent over the next few days.

These recorded conversations that Freund played at the 3.850 hearing confirmed that Trent had contacted Colton following the stabbing. Trent also told Dick that he would arrange for Colton to pay Dick to do some investigatory work. Trent suggested that Colton possessed Trent’s power of attorney over some of his assets.

After the tapes concluded, Dick testified that he had met with Colton following the calls from Trent. At that meeting, Colton denied to Dick that he enjoyed power of attorney over any of Trent’s assets. Dick testified that although he assumed without doubt that Colton represented Trent in late July and August 1984, Colton never told him that he represented Trent. Dick last spoke with Trent on August 8, 1984, just prior to his arrest in Illinois.

2. Duncan

Duncan was the second witness that Freund’s counsel called at the 3.850 hearing. With regard to the law firm’s representation of Trent prior to May 1984, Duncan testified that although Colton handled most of that work, he did appear with Colton at Trent’s forfeiture hearing before Judge Mounts. Duncan denied that the law firm simultaneously represented Trent and Freund. When asked about his reaction to Trent’s allegations at the severance hearing, Duncan admitted that he was appalled and that the law firm was generally angry.

The bulk of Duncan’s testimony, however, dealt with the law firm’s representation of Freund. Duncan and Foley served as Freund’s principal lawyers. In preparation for . Freund’s defense, Duncan observed Trent’s trial. He stated that Trent’s only defense was that he did not commit the murder. Duncan did not consider this defense to be completely consistent with the law firm’s theory of the case that Trent, knowing of Freund’s organic brain damage, orchestrated and manipulated Freund into stabbing Walker.

Duncan testified that, in his view, insanity was the only viable and plausible defense available to Freund. According to Duncan, the experts who testified on Freund’s behalf were “some of the best and well known in their field.” Additionally, the battery of psychiatric tests conducted after Freund’s suicide attempt provided documented proof that his organic brain damage existed well before Walker’s death. Finally, Duncan pointed out that Freund confessed to committing the stabbing to Foley at their first meeting and made similar confessions four or five months later to both Ms psychiatrist and Duncan.²⁷

Duncan conceded that the State’s physical evidence (e.g., the apartment, knife, handcuffs, gun, baseball bat, steamer trunk and location of the body) inculpated Trent, not Freund. He further conceded that the coroner did not discover any magnesium sulfate (one of the drugs that Freund injected into Walker) in Walker’s body at the autopsy, and that the police never found Freund’s bloody shirt or the doctor’s bag that he brought to Trent’s apartment. When asked whether the State’s three fact witnesses — Mills, Angelilli and Daniell — lacked credibility because of their admitted drug use and fear of Trent, Duncan testified that even under rigorous examination at Trent’s trial they would not “back off what they claim they saw.” This included Angelilli’s testimony that she saw Freund making stabbing motions with Trent’s knife in Walker’s direction — testimony that directly implicated Freund.

Duncan disagreed with Freund’s lawyer’s suggestion that the law firm did not seek to shift the blame for the murder to Trent. He argued that although Freund’s plea of insanity necessarily implied that Freund killed Walker, it was premised on Trent’s taking advantage of Freund’s known mental condition that rendered him a “robot” to Trent’s unlawful commands. Duncan pointed to his cross-examinations of Mills, Angelilli and Daniell, where he sought to elicit facts about Trent’s ability to control not only Freund, but also others.

Finally, when asked if Foley’s statement during closing argument that Trent might have committed the murder hurt Freund’s insanity defense, Duncan admitted that he was shocked when Foley made the statement and that it “sure didn’t help” Freund’s case. Duncan testified that he later asked Foley why he made the statement. Foley answered that he did it to “appease” Freund’s mother.

3. Colton

After Freund presented Dick’s and Duncan’s testimony, the State called Colton to the stand as its first witness. Colton discussed the law firm’s prior legal representation of Trent, focusing on the 1983 diazepam possession and aggravated assault charges. Colton corroborated Dick’s account of Trent’s requested investigation of the alleged assault victim. Colton emphasized that Trent substituted Roth for the law firm in May 1984 and asserted that Trent sought no further legal advice from the law firm about any matter after that date.

Colton also corroborated Dick’s account of Dick’s and Trent’s contact with Colton following the stabbing. Colton testified that he never told Dick that he was Trent’s lawyer. Rather, according to him, Colton “suggest[ed] strenuously” that Dick not get involved with Trent and that if Trent called Dick again, Dick should try to talk him into surrendering. Colton further testified that he told Trent that “his only alternative was to turn himself in, that [Colton] didn’t represent him and [Colton] did not have an attorney-client relationship with him.” Colton denied that he discussed the facts of the murder with Trent. At most, according to Colton, Trent may have said something to the effect of “I didn’t do it,” to which Colton replied, “you’d better turn yourself in.” Col-ton also flatly denied the allegations that Trent had raised at the severance hearing.

When asked about the relationship between the law firm’s representation of Trent and Freund, the State and Colton engaged in the following dialogue:

Q Okay. Was the representation of John Trent, your prior representation of him in any way connected with the facts of the homicide?

A No.

Q Did the facts of those cases have any bearing on the allegations of what had taken place on July 24th at the time of this murder?

A I don’t know what you mean.

Q I mean was there any connection brought in to the court that somehow the murder was related to him being charged with the aggravated assault in 1983 or related to him being charged with guns in 1983?

A No ma’am.

With regard to Mills, Colton admitted that he had “consulted” her about the cocaine trafficking charge. According to Colton, he discussed the possibility that she would provide substantial assistance to the Palm Beach County Sheriffs Office. He insisted that the meeting with Mills was brief and that after he quoted her a fee, he never saw her again in an official capacity.

Colton’s testimony drew to a conclusion with the State’s last question on direct examination. Freund’s lawyer elected not to cross-examine Colton.

4.Assistant State Attorney

The prosecutor from Freund’s trial also briefly testified at the 3.850 hearing as the State’s second and final witness. The prosecutor recalled the letter that he received from Foley on October 3, 1985, wherein Foley indicated that the law firm believed it had “a unique, valid insanity defense and ... a chance at getting a manslaughter jury verdict.” Also, in the prosecutor’s opinion, the law firm vigorously defended Freund at trial.

5.Expert Witness

The hearing ended with the rebuttal testimony of an expert in criminal defense law. He opined that the law firm’s representation of Freund fell below the constitutional standard of effective representation because it presented conflicts of interest with the law firm’s prior representations of Trent and Mills. The State’s cross-examination of Tar-koff revealed that Tarkoff was not a board certified criminal lawyer, had never discussed with the law firm the scope and nature of its prior representation of Trent, and had never talked to Trent.

6.Court’s Order

In a written order, the court denied Freund’s 3.850 motion. The court stated, in pertinent part:

From a consideration of the evidence presented the Court finds that no conflict existed at any time. Mr. Foley ... is accused by [Freund] of having represented [Trent] at the same time. The Court finds that allegation to be unfounded and that at no time did Mr. Foley represent ... Trent during the time that he represented [Freund]. Additionally, Mr. Foley’s prior representation of ... Trent was in matters unrelated to this case.

Florida’s Fourth District Court of Appeal affirmed the circuit court’s judgment without opinion, and the Supreme Court of Florida declined to exercise its appellate jurisdiction.

B. Federal District Court

On April 16, 1993, Freund filed the instant petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Southern District of Florida.²⁸ Consistent with his 3.850 motion, Freund alleged that the law firm’s conflicts of interest denied Freund the effective assistance of trial counsel. For the first time, however, Freund alleged facts about Trent’s aggravated assault and diazepam possession charges.

A magistrate judge reviewed the record and issued a report and recommendation. He stated, in pertinent part, that: (1) “the record supports the [state] court’s finding that the law firm’s representation, of Trent ended prior to [its] representation of [Freund]”; (2) Freund “presented no evidence establishing that the law firm ever simultaneously represented both [Freund] and ... Mills”; (3) Freund “failed to show ‘inconsistent interests’ by failing to demonstrate that the firm’s prior' representation of' Trent or [Mills] was substantially related to the firm’s representation of [Freund] or that the firm learned of relevant confidential information from these alleged prior representations”; and (4) the law firm’s adoption of the insanity defense did not evince an actual conflict of interest stemming from Trent’s allegations against the law firm at the severance hearing because an alternative defensive theory that “Trent ... inflicted the fatal wounds” was “not realistic in view of the uncontradicted testimony of the eyewitnesses.”²⁹ On November 1, 1993, the district court overruled Freund’s objections, adopted the report and recommendation and denied Freund’s petition.

III. ISSUE

The encompassing issue that we discuss is whether the district court erred in concluding that Freund was not denied effective assistance of counsel because of the law firm’s conflicts of interests arising from: (1) its prior representation of Trent; (2) its prior representation of Mills; and (3) Trent’s severance hearing testimony that two partners of the law firm, Colton and Foley, engaged in embarrassing and illegal conduct.

IV. DISCUSSION

The Sixth Amendment to the United States Constitution, as incorporated through the Fourteenth Amendment’s Due Process Clause, guarantees that persons accused of state crimes “shall enjoy the right ... to have the Assistance of Counsel for [their] defense.” U.S. Const. amend. VI; Gideon v. Wainwright, 372 U.S. 335, 342-43, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). This right, of course, includes the one presently at issue, the effective assistance of trial counsel. Under the familiar test set forth in Strickland v. Washington, to establish that trial counsel ineffectively assisted the defense, a habeas corpus petitioner proceeding under 28 U.S.C. § 2254 must show that (1) the lawyer’s representation fell below an objective standard of reasonableness that (2) prejudiced the defense, that is, provided a reasonable probability that but for such deficient performance, the verdict would have been different. 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

A. Rules of Law

The crux of Freund’s ineffective assistance claim is that his trial lawyers, the law firm of Foley, Colton and Duncan, P.A., labored under conflicts of interest. The first issue that brought this case en banc concerns the rules of law that apply in conflict cases involving successive, as opposed to simultaneous, representations.³⁰ In Cuyler v. Sullivan, a case involving simultaneous representations, the Supreme Court held that “[i]n order to demonstrate a violation of his Sixth Amendment rights, [the petitioner] must establish that [1] an actual conflict of interest [2] adversely affected his lawyer’s performance.” 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Although both Freund and the State agree that the “actual conflict” prong of the Cuyler test applies in a successive representation case, they dispute what means are available to a petitioner to prove it. Freund contends that under this court’s decision in Smith v. White, a petitioner may establish an actual conflict of interest through one of three means: (1) pointing to facts and circumstances that show that the lawyer’s representation of the former client related substantially to the lawyer’s representation of petitioner (“substantial relatedness”); (2) advancing evidence that the former client actually revealed confidential information to the lawyer during that prior representation (“confidential information”); or (3) relying on “other proof of inconsistent interests.” 815 F.2d 1401, 1406 (11th Cir.1987), cert. denied, 484 U.S. 863, 108 S.Ct. 181, 98 L.Ed.2d 133 (1987). The State, also citing Smith, asserts that only the first two means are available to the petitioner and that they must be employed in the conjunctive (that is, petitioner must prove both substantial relatedness and confidential information). The State argues that courts should forgo a showing of confidential information only in pretrial disqualification proceedings where preventing use of privileged discussions remains essential.

We hold and reaffirm that Smith articulates this circuit’s test for proving an “actual conflict” in the successive representation context. 815 F.2d at 1405-06. We, however, disagree somewhat with each party’s interpretation of Smith. Rather, we interpret Smith to mean the following. An “actual conflict” of interest occurs when ' a lawyer has “inconsistent interests.” Smith, 815 F.2d at 1405. In order to prove that an “actual conflict” hindered petitioner’s lawyer’s performance, petitioner “must make a factual showing of inconsistent interests” or point to “specific instances in the record” to suggest an actual impairment of his or her interests. Smith, 815 F.2d at 1404; Oliver v. Wainwright, 782 F.2d 1521, 1524-25 (11th Cir.) (emphasis and internal quotation marks omitted), cert. denied, 479 U.S. 914, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986). “[generally, it is more difficult to prove that successive representation caused an actual conflict of interest than that simultaneous representation did so.” Smith, 815 F.2d at 1405. At minimum, petitioner must “show that either (1) counsel’s earlier representation of the witness was substantially and particularly related to counsel’s later representation of [petitioner], or (2) counsel actually learned particular confidential information during the prior representation of the witness that was relevant to [petitioner’s] later case.” Smith, 815 F.2d at 1405 (emphasis added).³¹ Even proof of both substantial relatedness and confidential information, however, may not necessarily be enough to demonstrate “inconsistent interests in a successive representation ease. See Smith, 815 F.2d at 1406. The situation may call for “other proof of inconsistent interests.” 815 F.2d at 1406. Overall, the “actual conflict” inquiry is fact-specific, consistent with the petitioner’s ultimate burden “to prove that his conviction was unconstitutional.” Smith, 815 F.2d at 1406.

Contrary to the State’s position, we find no compelling reason to break with stare decisis in requiring as a necessary condition to proving an “actual conflict” the actual revelation of confidential information during the prior representation. The rule of law in this circuit is (and will continue to be) that “once the former client [petitioner] proves that the subject matters of the present and prior representations are ‘substantially related,’ the court will irrebutably presume that relevant confidential information was disclosed during the former period of representation.” Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020, 1028 (5th Cir.1981), cert. denied, 454 U.S. 895, 102 S.Ct. 394, 70 L.Ed.2d 211 (1981). It is true that this rule has its origin in pretrial proceedings concerning motions to disqualify lawyers, as opposed to post-conviction proceedings concerning Sixth Amendment violations. E.g., Duncan, 646 F.2d at 1033 (vacating district court’s order granting defendant’s motion to disqualify plaintiffs lawyer, for want of sufficient evidence that lawyer’s current representation of plaintiff substantially related to the lawyer’s former representation of defendant). Yet, the rationale behind the rule applies to both types of proceedings. The reason for this presumption is that it is not practical or fair to require a subsequent client {e.g., Freund) to prove what specific facts the former client {e.g., Trent and Mills) disclosed to the lawyer during the prior representation. Moreover, standards of professionalism often prevent the lawyer from disclosing such information without the former client’s consent.³² To avoid these complications, upon a showing of substantial relatedness, we presume that the former client {e.g., Trent and Mills) divulged to the lawyer {e.g., Colton) all of his or her confidences relevant to the subject of the representation. The State fails to' reconcile its position with these practical difficulties of proof that are equally present in the post-conviction context. See Appellee’s En Banc Answer Brief at 8 (“[T]he presumption serves no useful purpose in the context of the instant case since representation of the new client, i.e. Freund had already occurred when the allegation of conflict arose.”).

Nor do we accept the State’s view that Cuyler’s “adverse effect” prong should not apply in a successive representation case. It points to the Fifth Circuit’s decision in Beets v. Scott, 65 F.3d 1258 (5th Cir.1995), cert. denied, 517 U.S. 1157, 116 S.Ct. 1547, 134 L.Ed.2d 650 (1996), and asserts that a Strickland “prejudice” analysis (that is, a reasonable probability that the verdict would have been different but for the conflict) is more appropriate than Cuyler’s more lax “adverse effect” test (that is, counsel refrained from pursuing a reasonable, alternative defense strategy because of an actual conflict). We, however, decline to consider the State’s argument. First, the State did not raise the argument before the district court and the panel, nor did it serve as a basis for the State’s suggestion for rehearing en banc. Second, our cases have required a showing of adverse effect in the successive representation context. E.g., Lightbourne v. Dugger, 829 F.2d 1012, 1024 (11th Cir.1987) (finding “no adverse effect upon petitioner’s representation” even though petitioner’s lawyer, an assistant public defender, had to cross-examine “a client formerly represented by the same public defender’s office”), cert. denied, 488 U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 346 (1988). Finally, a resolution of this contention is not essential to this case because even under the more lax Cuyler standard, we find no adverse effect in this case, as we explain in section IV, part C, subsection 2 of the opinion.

Accordingly, with regard to “adverse effect,” the rule of law in this circuit is (and continues to be) the same rule that the panel employed:

To prove adverse effect, a habeas petitioner must satisfy three elements. First, he must point to “some plausible alternative defense strategy or tactic [that] might have been pursued.” United States v. Fahey, 769 F.2d 829, 836 (1st Cir.1985); see also Porter [v. Wainwright, 805 F.2d 930, 939-40 (11th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 682 (1987)]. Second, he must demonstrate that the alternative strategy or tactic was reasonable under the facts. Because prejudice is presumed, see Strickland, 466 U.S. at 692, 104 S.Ct. 2052, the petitioner “need not show that the defense would necessarily have been successful if [the alternative strategy or tactic] had been used,” rather he only need prove that the alternative “possessed sufficient substance to be a viable alternative.” Fahey, 769 F.2d at 836. Finally, he must show some link between the actual conflict and the decision to forgo the alternative strategy of defense. In other words, “he must establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.” [Fahey, 769 F.2d at 836],

Freund 117 F.3d at 1579-80. It bears repeating, however, that “[prejudice is presumed only if the defendant demonstrates that ... ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” Strickland, 466 U.S. at 692, 104 S.Ct. 2052 (quoting Cuyler, 446 U.S. at 358, 100 S.Ct. 1708).

B. Standard of Review

The second principal issue that brought this case en banc concerns the standard of review. Specifically, we directed the parties to brief the following question:

Is a lower court’s determination that a law firm’s prior representation in a matter is or is not “substantially and particularly related,” see Smith v. White, [815 F.2d at 1405], to a later representation for purposes of evaluating an ineffective-assistance-of-eounsel claim based on a conflict of interest: (a) a question of fact; (b) a question of law; (c) a mixed question of law and fact?

In this case, both lower courts have presented us with relatedness determinations. The state court said that the law firm’s “prior representation of Mr. Trent was in matters unrelated to” its representation of Freund. Likewise, the district court decided that the law firm’s representation of Freund not only was not “substantially and particularly related” to the law firm’s prior representation of Trent on his aggravated assault and diazep-am possession charges, but also beared no “correlation between the firm’s alleged representation of ... Mills on a prior cocaine charge[.]”

Our resolution of this issue will dictate whether we defer to these determinations or analyze their underlying arguments anew. Unquestionably, state court findings of fact are subject to the presumption of correctness, and similar federal district court findings are deemed correct unless clearly erroneous. Collier v. Turpin, 155 F.3d 1277, 1289-90 (11th Cir.1998). Questions of law and mixed questions of law and fact, on the other hand, mandate de novo review. Buenoano v. Singletary, 74 F.3d 1078, 1083 (11th Cir.), cert. denied, — U.S. -, 117 S.Ct. 520, 136 L.Ed.2d 408 (1996). Not surprising, then, Freund contends that relatedness is a pure question of law. The State, in contrast, asserts that relatedness is a pure question of fact.

Upon close scrutiny, we hold that the issue of whether a lawyer’s prior representation is substantially and particularly related to a subsequent representation is a mixed question of law and fact. To be sure, the relatedness inquiry involves both legal and factual components. Reference to a law book alone cannot resolve the issue. Historical facts — such as the nature and scope of each representation and what the lawyer did for each client — are necessary' predicates to linking the two representations. See Thomas v. Zant, 697 F.2d 977, 980 (11th Cir.1983) (“[S]pecific historical facts found by a state habeas court (such as what an attorney actually did for his client), to which a standard of law is applied in deciding a mixed question of fact and law, ... merit section 2254(d)’s presumption of correctness in a federal habe-as proceeding!.].”) (internal quotation marks and citation omitted; emphasis added). Indeed, we have repeatedly instructed that petitioners “must make a factual showing of inconsistent interests” to prove the existence of an actual conflict. United States v. Mers, 701 F.2d 1321, 1328 (11th Cir.) (emphasis added), cert. denied, 464 U.S. 991, 104 S.Ct. 482, 78 L.Ed.2d 679 (1983); see also Burden v. Zant, 24 F.3d 1298, 1305 (11th Cir.1994); Porter v. Singletary, 14 F.3d 554, 560-61 (11th Cir.), cert. denied, 513 U.S. 1009, 115 S.Ct. 532, 130 L.Ed.2d 435 (1994); Smith, 815 F.2d at 1404; United States v. Romero, 780 F.2d 981, 986 (11th Cir.1986); Barham v. United States, 724 F.2d 1529, 1532 (11th Cir.), cert. denied, 467 U.S. 1230, 104 S.Ct. 2687, 81 L.Ed.2d 882 (1984); and United States v. Carter, 721 F.2d 1514, 1536 (11th Cir.), cert. denied, 469 U.S. 819, 105 S.Ct. 89, 83 L.Ed.2d 36 (1984).

Our holding also fits squarely within the Supreme Court’s growing list of issues that involve mixed questions of law and fact, that is, applications of law to historical fact. In Sumner v. Mata, the Court held that “the ultimate question as to the constitutionality of the pretrial identification procedures used in [a] case is a mixed question of law and fact[,]” but “the questions of fact that underlie this ultimate conclusion are governed by the statutory presumption!.]” 455 U.S. 591, 597, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982). Similarly, in Miller v. Fenton, the Court stated that the “ultimate constitutional question” of the admissibility of a confession is a “mixed question of fact and law” subject to plenary federal review. 474 U.S. 104, 112, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). And, more recently, in Thompson v. Keohane, the Court found that “the ultimate ‘in custody’ determination for Miranda purposes” also involved mixed questions of law and fact. 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995).

In Thompson, the Court acknowledged that “[i]n regard to ■ § 2254(d), as in other contexts, the proper characterization of a question as one of fact or law is sometimes slippery.” 516 U.S. at 110-11, 116 S.Ct. 457 (footnote omitted). Essentially, though, the Court summarized its precedents as limiting the presumption of correctness to “basic, primary, or historical facts: facts in the sense of a recital of external events and the credibility of their narrators.” Thompson, 516 U.S. at 110, 116 S.Ct. 457 (internal quotation marks and citations omitted). The Court also pointed to limited instances where questions of fact can go beyond the purely historical ones touching upon “what happened,” labeling them questions that “depend[ ] heavily on the trial court’s appraisal of witness credibility and demeanor.” Thompson, 516 U.S. at 111, 116 S.Ct. 457 (citing the issues of competency to stand trial and juror impartiality as examples of questions of fact that depend upon the state court’s credibility assessment); accord Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir.1998) (“The question of whether an attorney’s actions were actually the product of a tactical or strategic decision is an issue of fact, and a state court’s decision concerning that issue is presumptively correct.”).

Plainly, linking the subject matters of pri- or and subsequent representations does not lend itself to a “basic, primary or historical” factual review. The State neither advances, nor do we find, anything special about the relationship between a prior and subsequent representation that would necessitate deference to the state court’s credibility assessment. To the contrary, once the petitioner paints the factual picture of the two representations and what the lawyer did in each, a relatively dry and common sense evaluation ensues to determine whether they are sufficiently linked. Perhaps that is why our cases suggest that all the elements of an ineffective assistance of counsel claim premised on conflicts of interest involve mixed questions of law and fact. E.g., Porter, 14 F.3d at 561 (“Questions involving conflicts of interest are mixed determinations of law and fact subject to de novo review.”); Oliver, 782 F.2d at 1524 (“[Questions involving conflicts of interest[,]” including the “ultimate issue” of whether the facts “support the conclusion that an actual conflict of interest existed[,]” are “mixed determinations of law and fact not entitled to a presumption of correctness under 28 U.S.C. § 2254(d) (1982).”). In short, we find every reason to treat equally the ultimate conclusion of substantial relatedness, one of the potentially dispositive elements of a conflict claim stemming from successive representations. The historical facts underlying that conclusion, however, continue to be subject to the presumption of correctness. To hold otherwise would violate well-established notions of comity and federalism. See generally Mason v. Balcom, 531 F.2d 717, 721 (5th Cir.1976) (“[Cjonsiderations of comity do not obligate federal courts in habe-as corpus cases to defer to state determinations on matters of federal law. The obligation of the federal judge is the opposite: to apply the proper federal constitutional standards based on the underlying facts[.]”) (citation omitted).

C. Merits

Finally, we turn to the merits of Freund’s claim — the third issue that brought this case en banc. Under de novo review, we examine in turn the three alleged sources of the law firm’s conflicts of interest.

1. Actual Conflict

i. Prior Representation of Trent

Freund’s main contention is that the law firm’s prior representation of Trent on aggravated assault and diazepam possession charges presented inconsistent interests with its representation of Freund concerning the stabbing death of Walker. Specifically, Freund claims that contrary to the district court’s judgment, he established that these representations were substantially related. We, however, are not convinced.

First, Freund failed to establish a record at the 3.850 hearing concerning the scope and nature of the law firm’s prior representation of Trent. See generally Duncan, 646 F.2d at 1031 (stating that “although Merrill Lynch ha[d] repeatedly asserted that the present and former representations [were] substantially related, it ha[d] demonstrated no more than a surface and superficial connection between the matters”) (emphasis added). Freund’s lawyer never questioned Colton — the law firm attorney who initially represented Trent regarding the drug possession and aggravated assault charges — at the 3.850 hearing. Freund’s lawyer thus failed to elicit any information from the person most likely to know the scope and nature of the prior representation.³³ The State, however, did question Colton about his prior representation of Trent. He unequivocally testified that his representation of Trent was not in any way connected to the facts of the murder. Cf. Barham v. United States, 724 F.2d 1529, 1532 (11th Cir.) (affirming the district court’s conclusion that no actual conflict existed, noting that the lawyer testified “that his representation of [former client] ‘had not the remotest connection’ with [defendant’s] trial”), cert. denied, 467 U.S. 1230, 104 S.Ct. 2687, 81 L.Ed.2d 882 (1984). Although Freund’s counsel questioned Duncan, Col-ton’s partner, he neglected to ask Duncan any questions about the scope of the law firm’s prior representation of Trent on matters other than Duncan’s involvement with the civil forfeiture proceeding that Freund does not claim to be substantially related to the murder.

The only substantive testimony that Freund presented regarding the scope and nature of the law firm’s prior representation of Trent consisted of the testimony of Dick and Freund’s rebuttal expert witness. Dick, a part-time private investigator, testified that he never completed the only work that Trent (and possibly Colton) requested, that is, investigate the background of Vana, the alleged victim of Trent’s aggravated assault charge. Dick also testified that neither Col-ton nor Trent requested that he do any investigative work with respect to Trent’s drug possession charge. With regard to Freund’s expert witness in the area of criminal law, the State elicited during its cross-examination that he was not a board certified criminal lawyer, that he had never talked to anyone from the law firm about the scope and nature of their prior representation of Trent, and that he had never talked to Trent. The district court did not err in concluding that Freund “failed to ... demonstrate that the firm’s prior representation of Trent .... was substantially related to the firm’s representation of [Freund].”³⁴

Even if we consider the allegations contained in Freund’s petition to the district court — allegations that Freund clearly did not attempt to prove at the 3.850 hearing— they do not support the conclusion that Freund’s counsel labored under an actual conflict. In 1983, Trent allegedly brandished a gun on a public street and threatened to kill two persons. The alleged facts were that Trent was speeding recklessly through a residential area and screeched to a halt. Vana came out of her apartment fearing that Trent had struck a neighborhood child. She asked Trent why he was driving like that. Trent told her to mind her own business or she would get hurt. When Vana’s husband approached, Trent pulled out a handgun from a holster in his waistband and asked her if she “wanted this one or the other,” motioning to a gun that he supposedly had in his back waistband area. A few days later, when the officers arrested Trent, they discovered dia-zepam in Trent’s car.

It is clear from the foregoing description of Trent’s arrest that the aggravated assault charge did not involve Freund, Walker or any of the other individuals who figured prominently in the Walker murder investigation, and Freund does not allege that he knew the Vanas or the other witnesses involved in the aggravated assault complaint. Similarly, the diazepam possession charge, and ensuing forfeiture proceeding, did not actually involve anyone connected to the Walker murder case, except Trent. Therefore, any determination of a “substantial relationship” between the law firm’s prior representation of Trent and subsequent representation of Freund can only be based on the nature of the offenses involved in the representations, that is, the fact that diazepam and guns were involved in both representations.

Such vague similarities, however, do not establish a substantial relationship between a prior and subsequent representation — especially where, as here, myriad factors differentiate the subject matter of each representation. Kraft, 659 F.2d at 1346 (substantial relatedness exists when “the present action and the past representation concern the very same subject matter”) (emphasis added); United States v. Martinez, 630 F.2d 361, 362 (5th Cir.1980) (substantial relatedness existed because prior representation concerned “same [criminal] transactions” and “same events” at issue in defendant’s case), cert. denied, 450 U.S. 922, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981). The aggravated assault occurred in a completely different setting— on a city street rather than in Trent’s apartment. Although Trent shot at Walker before he died, the bullet neither hit Walker nor caused his death. Undisputably, the cause of Walker’s death was stabbing. Furthermore, no evidence exists in the record that the gun was the same one that Trent used in the aggravated assault case. See Appellants’ En Banc Reply Letter at 26 (conceding “the lack of hard evidence that both cases involved the same gun”). It was equally uncontested that Trent owned several guns and waved them around as a symbol of his authority.

The connection between Trent’s diazepam possession charge and the stabbing was equally as tenuous. Although the coroner found a derivative of diazepam in Walker’s body, the drug did not kill Walker. Again, Walker died from stab wounds. Moreover, it was undisputed that Trent was the source of the diazepam that was injected into Walker’s body on the night of the murder. No one alleged that Freund was the one who brought it to Trent’s apartment. Likewise, the fact witnesses testified that Freund, Trent and Daniell all took turns injecting Walker with the diazepam and vodka mixture. Therefore, regardless of Freund’s failure to meet his burden of proof, the district court did not err in concluding that “Trent’s prior charges of possession of diazepam and aggravated assault [were] not ‘substantially and particularly’ related to [Freund]’s murder trial.”

Finally, the district court correctly found that Freund failed to demonstrate that the law firm “learned of relevant confidential information from” Trent. As we explained in section IV, part A, of this opinion, we cannot presume confidential information ■ unless Freund proved substantial relatedness, which he did not. Nor did Freund elicit any independent proof of confidential information. The only arguably relevant information that the law firm knew about Trent, his arrest for and charges of possession of diazepam and aggravated assault, were matters of public record. Under the Rules Regulating the Florida Bar, the law firm’s knowledge of those charges cannot be the basis of a conflict of interest:

A lawyer who has formerly represented a chent in a matter shah not thereafter ... use information relating to the representation to the disadvantage of the former client except as rule 4-1.6 [confidentiality] would permit with respect to a client or when the information has become generally known.

Rule Regulating Fla. Bar 4-1.9(b). In addition, the comment to rule 4-1.9 provides that:

Information acquired by the lawyer in the course of representing a client may not subsequently be used by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.

Rule Regulating Fla. Bar 4-1.9 cmt. (emphasis added). Just as “generally known” was any disparaging information about Trent that Trent himself, chose to divulge at the severance hearing.

At best, the law firm faced a potential conflict of interest before the court severed Trent’s and Freund’s trials. See United States v. McCutcheon, 86 F.3d 187, 188-89 (11th Cir.1996) (affirming the district court’s disqualification of defendant’s lawyer because his prior representation of the codefendant who had “confided to [the lawyer] certain personal information concerning his background” ethically prevented cross-examination in joint trial). Consistent with the Bar Opinion, however, the court’s severance order and the prosecutor’s decision not to call Trent to testify removed the possibility that the law firm would cross-examine its former client. Thus, at no time did the law firm’s hypothetical conflict of interest rise to the level of an actual conflict of interest. See Cuyler, 446 U.S. at 350, 100 S.Ct. 1708 (“[T]he possibility of conflict is insufficient to impugn a criminal conviction.”).

ii. Prior Representation of Mills

Freund also contends that the law firm labored under an actual conflict of interest arising from Colton’s prior consultation with Mills about the facts of a cocaine charge.³⁵ Again, Freund’s efforts at the 3.850 hearing to develop the historical facts surrounding Colton’s consultation with Mills were lacking. He never questioned Colton, the witness who could provide the most relevant information (since he did not subpoena Mills to testify). The State elicited any and all testimony about the law firm’s prior representation of Mills.

In any event, from Freund’s trial, we know that in early 1984, an undercover police officer arrested Mills after she attempted to sell him a kilogram of cocaine. Duncan himself elicited this information on cross-examination of Mills. See supra note 24. In addition, the 3.850 hearing provided Colton’s admission that he had “consulted” with Mills about the cocaine trafficking charge. They also discussed the possibility that she would provide substantial assistance to the Palm Beach County Sheriffs Office. He insisted that the meeting with Mills was brief and that after he quoted her a fee, he never saw her again in an official capacity.

It is true that “[a]n attorney who cross-examines a former chent inherently encounters divided loyalty.” Lightbourne, 829 F.2d at 1023. “[I]n a successive representation case,” however, “mere proof that a criminal defendant’s counsel previously represented a witness is insufficient to establish ‘inconsistent interests.’” Smith, 815 F.2d at 1405. Rather, the petitioner must prove inconsistent interest under the framework that we reaffirmed in section IV, part A, of this opinion. Thus, to show an actual conflict stemming from the law firm’s prior representation of Mills, Freund — at the very least— needed to prove either substantial relatedness or the actual revelation of confidential information.

Freund established neither. As with Trent, nothing more than vague similarities linked the representations of Mills and Freund. Even if Mills had admitted to Col-ton that she trafficked a kilogram of cocaine to an undercover officer, that information had no bearing on Freund’s case. Mills admitted on the stand that she had used cocaine in the past and on the night of the murder, and Trent’s referring her to the law firm is inconsequential. It is undisputed that Colton did not do any work for Mills other than “consult” her. Thus, any additional bias on Mills’s part toward Trent that Freund claims his lawyers were aware of was, at best, nominally probative.

Regarding confidential information, Mills waived her rights when she testified to everything that she had told Colton in a deposition at Roth’s direction and in Duncan’s presence. Therefore, even if Mills had divulged relevant confidential information to Colton— a showing that Freund made little to no effort to advance — the confidential nature of it ceased to exist when she disclosed it to a third party prior to trial. At the time that Duncan cross-examined Mills, his law firm’s prior representation of her presented no more than a hypothetical conflict of interest. Accordingly, the district court did not err in concluding that Freund “failed to establish any correlation between the firm’s alleged representation of ... Mills on a prior cocaine charge ... and [its] representation of [Freund].”

iii. Trent’s Allegations

Lastly, Freund points to Trent’s, allegations at the pretrial severance hearing of embarrassing and illegal conduct against members of the law firm as a source of an actual conflict of interest. In Freund’s view, it was in the law firm’s own best interest not to antagonize Trent for fear that he would repeat the allegations again. Freund’s argument, however, cannot stand. Concerning Trent’s allegations of illicit activities on the part of the lawyers, even Freund concedes that the damage was done. See Appellants’ Initial Brief at 39 (“[0]nce Trent testified at the pretrial [severance] hearing, the damage was done[.]”). Trent made the allegations of the lawyers’ condoning drug use and participating in prostitution parties with him in open court, at a hearing that received a significant amount of media attention. And, in front of the media, Colton was able to deny “each and every accusation ... unequi-vocably and totally."³⁶ Accordingly, Trent’s allegations — that Colton denied under oath and Freund did not reiterate at the 3.850 evidentiary hearing — did not cause an actual conflict between the law firm’s and Freund’s interests.

2. Adverse Effect

Even if any of the alleged conflicts of interest rose to the level of an actual conflict, we fail to find any adverse effect flowing from them.³⁷

i. Failure to Shift the Blame to Trent

Freund contends that but for the law firm’s allegiance to Trent because of its prior and extensive representation of him and Trent’s public allegations of embarrassing and illicit conduct on the part of Colton and Foley, it would have pursued a blame-shifting defense that Trent, as opposed to Freund, actually stabbed Walker to death. Freund points to Foley’s closing argument where he “wondered whether Trent did it” as evidence that even the law firm realized the superiority of this defense over insanity. The State responds that in light of the undisputed testimony of all three fact witnesses that Freund stabbed Walker to death, the law firm pursued the only viable theory of the case available to it. It further points out that Freund’s unique insanity defense, that is, that Trent knowingly took advantage of Freund’s organic brain damage and manipulated him like a robot, shifted the blame to Trent somewhat — refuting any suggestion that the alleged conflicts of interest motivated the law firm’s strategy.

We agree with the State. It is true that “a strategy of shifting blame to one’s eodefend-ant[] is a legitimate and often effective defense strategy!.]” Mers, 701 F.2d at 1330. In this case, however, a wholesale shifting of the blame to Trent was not a plausible defensive “option realistically available to trial counsel!,]” regardless of the law firm’s prior dealings with Trent. Carter, 721 F.2d at 1537 (internal quotation marks omitted and emphasis added); accord Freund, 117 F.3d at 1580 (alternative strategy must be “reasonable under the facts” and “possess! ] sufficient substance to be a viable alternative”). Duncan testified at the 3.850 evidentiary hearing that Freund admitted to him that he stabbed Walker, confessed to committing the stabbing to Foley at their first meeting at the law firm’s offices, and later told his psychiatrist that he stabbed Walker because Trent told him to do it. Freund did not elicit testimony from Duncan that either he or Foley had any factual basis to doubt Freund’s confessions.³⁸

Freund correctly points out that all of the State’s physical evidence — that is, the apartment, bloody knife, steamer trunk that contained Walker’s body, sledgehammer, handcuffs, duct tape, guns, dented baseball bat, blood-soaked towels, dining room chair with a bullet lodged in it, van with Trent’s and Fullerton’s fingerprints, syringes, bottles of diazepam, empty capsules of magnesium sulfate, and liquor bottles — either belonged to or was found on property of Trent. Physical evidence, however, is only as persuasive as the witnesses who authenticate and tell the story behind it. At Freund’s trial, and from the start of the police’s investigation, all three of the State’s principal fact witnesses— Mills, Angelilli and Daniell — testified against Freund. They all testified that Freund was present at Trent’s apartment the night of the murder and that, at Trent’s direction, he injected Walker first with magnesium sulfate, then with mixtures of vodka and diazepam, and finally with air. Angelilli testified that Freund make stabbing motions in the direction of Walker’s body — testimony that directly implicated Freund. Corroborating Angelilli’s testimony, Daniell stated that he saw Freund pick up Trent’s knife and approach Walker. And, all three witnesses testified that Freund was alone in the main room with Walker for a short time, and that afterward he came into the bedroom with blood on his shirt and said, “It’s over.”

Attempting to get Mills, Angelilli and Dan-iell to change their implication of Freund on cross-examination would have proved fruitless. Duncan had observed the witnesses’ testimonies during Trent’s trial, and tactically determined that their stories would survive rigorous cross-examination. In Duncan’s professional view, these witnesses would simply “not back off of their testimony.” To be sure, Freund points to no evidence that Trent — if the law firm had called him to testify — would have exculpated him, even though he had pleaded guilty to second-degree murder before Freund’s trial commenced. See Carter, 721 F.2d at 1537 (Defendant “points to no evidence that a code-fendant could have exculpated him.”). That Trent may have been more motivated than Freund to kill Walker is inconsequential. See Oliver, 782 F.2d at 1525 (blame shifting was not realistic because although eodefend-ant had a motive to kill the victim, no witness saw him holding the knife or could corroborate his opportunity to do so). Simply put, no fact witness-including Freund himself— could corroborate Freund’s innocence.

Additionally, we observe that in light of Freund’s confessions to Foley, Duncan and his psychiatrist, the law firm’s lawyers could have been disbarred if they had pursued a complete blame-shifting defense. Although it would certainly be ethical to argue reasonable doubt — and put the State to its burden of proof — it would not be ethical to affirmatively point the finger at someone else. See R. Regulating Fla. Bar 4-3.S(a)(1), (4); (c) (“A lawyer shall not knowingly: (1) Make a false statement of material fact ... to a tribunal; ... (4) Offer evidence that the lawyer knows to be false[;] .... (e) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.”) (quoted in The Florida Bar Re Rules Regulating the Florida Bar, 494 So.2d 977, 1057-58 (Fla.1986)). “Of course, the Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade.” United States v. Cronic, 466 U.S. 648, 656 n. 19, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); see also Nix v. Whiteside, 475 U.S. 157, 168, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986) (“[A]n attorney’s ethical duty to advance the interest of the client is limited by an equally solemn duty to comply with the law and standards of professional conduct.”).

Freund failed to establish not only the first and second elements of adverse effect, but also the third prong, that is, “some link between the actual conflict and the decision to forgo” a blame-shifting defense. Freund, 117 F.3d at 1580. First, the record does not support Freund’s contention that the law firm’s allegiance to Trent under the rules of professional conduct necessarily colored every decision that it made from the outset of its representation of Freund. As the State correctly contends, the law firm did, in fact, attempt to shift the blame to Trent to some degree. If proven in a joint trial, the law firm’s theory of defense that Trent knew that Freund’s organic brain damage rendered him susceptible to influence, and that he manipulated Freund like a robot to kill Walker, would certainly not have guaranteed Trent’s acquittal on the first-degree murder charge. A jury could still find Trent guilty of the capital offense as an accessory before the fact if, along with helping Freund kill Walker, he intended that Freund kill Walker. See Fla. Stat. § 777.011 (1983). A jury could also find Trent guilty of first-degree felony murder, even if he did not commit the killing. See Cave v. State, 476 So.2d 180, 186 (Fla. 1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986). The prosecution could even get the death penalty if it proved that Trent acted either with the intent that Walker die or with reckless disregard for Walker’s life. See Enmund v. Florida, 458 U.S. 782, 798, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (intent that victim die); Tison v. Arizona, 481 U.S. 137, 157-58, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) (reckless disregard for victim’s life). At best, Freund’s implicit admission that he committed the stabbing would mitigate against the death penalty for Trent. See Fla. Stat. § 921.141(6)(d). That Freund’s successful plea of insanity in a joint trial could have relieved both he and Trent of criminal liability reconciles entirely with a conclusion that the law firm provided effective assistance of trial counsel.

Similarly, the timing of Trent’s allegations at the severance hearing belie Freund’s contention that they motivated the law firm’s decision not to point affirmatively the finger at Trent. Both Foley’s press conference and formal notice of intent to rely on insanity pre-dated Trent’s allegations at the severance hearing. Also, Trent’s lawyer learned of Freund’s statement to the psychiatrist before the pretrial severance hearing, providing the reason for requesting the severance and possibly giving Trent the motivation to make the allegations against Foley and Colton at the hearing. Indeed, given the undisputed testimony that Trent’s allegations “angered” the law firm, they arguably provided an incentive for the firm to shift more of the blame to Trent. Thus, the law firm’s alleged conflict with its own interests not to antagonize Trent “played absolutely no role in counsels’ ... strategy.” Buenoano, 74 F.3d at 1086.

In short, we conclude that conflict-free counsel would have chosen the same defense that the law firm that Freund retained did. Because Freund confessed to the killing, and the firm had strong and reasonable medical proof of his organic brain damage, insanity was the law firm’s only viable and plausible defense, as Duncan testified at the 3.850 hearing. We also credit Duncan’s testimony that he did not refrain from doing anything for Freund as a result of the law firm’s prior representation of Trent. Cf. Porter, 14 F.3d at 561 (finding no error in the district court’s finding of no conflict of interest that was based, in part, on the district court’s crediting the lawyer’s testimony that he did not refrain from asking his former client any questions on cross-examination because of his prior representation of that client). Accordingly, the district court did not err in concluding that “the alternative theory proposed by [Freund] [was] not realistic in view of the uncontradicted testimony of the eyewitnesses.”

ii. Failure to Further Cross-Examine Mills

Finally, Freund points to Duncan’s cross-examination of Mills as evidence that the law firm’s conflict of interest adversely affected its defense of Freund. Specifically, Freund argues that a conflict-free lawyer could have used information that Trent referred her to Colton to further impeach Mills and suggest bias in favor of Trent. We are not convinced. Under our recitation of the law of adverse effect in section IV, part A, it matters not what a conflict-free lawyer could have done, but what he or she would have done. In other words, Freund had the burden of proving through a preponderance of the evidence that Duncan would have questioned Mills about Trent’s referring her to the law firm but for Colton’s professional relationship with her. This he failed to do. Freund engaged in no line of question at the 3.850 hearing to prove this notion.

If anything, Freund’s cross-examination of Duncan at the 3.850 hearing established just the opposite, that is, that he did question Mills about Trent’s assisting her to reduce the cocaine trafficking charge. This cross-examination was entirely consistent with the law firm’s theory of defense, as Duncan’s undisputed testimony that he elicited facts from'Mills (and Angelilli and Daniell) to show Trent’s ability to control others evinced. Thus, every indication exists that tactical reasons, as opposed to an alleged conflict of interest, motivated Duncan’s conduct. Accordingly, Freund failed to show a sufficient “link between the [alleged] actual conflict and the decision” not to ask Mills about her referral to the law firm, and, “at best,” the omission’s effect on the law firm’s representation of Freund was “de minimus.” Freund, 117 F.3d at 1580; Lightbourne, 829 F.2d at 1024.

V. CONCLUSION

For the foregoing reasons, and in summary, we hold that: (1) the rules of law as announced in Smith v. White, 815 F.2d at 1404-06, govern claims of ineffective assistance of trial counsel premised on conflicts of interest stemming from successive representations; (2) the issue of whether a law firm’s prior representation of a witness or non-testifying, separately-tried eodefendant is substantially and particularly related, to its subsequent representation of the petitioner is a mixed question of law and fact that is not subject to section 2254(d)’s presumption of correctness; and (3) the law firm did not provide ineffective assistance of trial counsel to Freund because its prior representations of Trent and Mills, as well as Trent’s public allegations of embarrassing and illicit activity on the part of two of its lawyers, did not give rise to actual conflicts of interest that adversely affected the law firm’s performance. Accordingly, we affirm the judgment of the district court.³⁹

AFFIRMED.

1 . We borrow much of the factual and collateral review background information verbatim from the panel's opinion. See Freund v. Butterworth, 117 F.3d 1543, 1547-70 & nn. 1-60 (11th Cir.1997), vacated, 135 F.3d 1419 (11th Cir.1998) (granting the State's suggestion for rehearing en banc).

2 . These three persons also testified at Trent’s trial, which preceded Freund's trial. Trent and Freund did not testify at either trial.

3 . At the time she testified in court, Angelilli was eighteen years old.

4 . We derive the following factual account of Walker's death from the testimony of Mills, An-gelilli and Daniell at Freund's trial. We note where their testimony conflicted. In light of Freund's conviction, however, we must view their trial testimony in a light most favorable to the State.

5 .The exact time of arrival is unclear. Mills initially told the police that they arrived at 3 p.m., but she testified at trial that they did not arrive before 6 p.m. Angelilli testified that they arrived at 4 p.m.

6 . Magnesium sulfate is a mild muscle relaxer. Oncologists frequently use this drug to treat symptoms arising from chemotherapy and to replenish the body with magnesium that is lost during the therapy.

7 . Daniell was sober when he arrived, but soon joined Trent, Mills and Angelilli in consuming cocaine. Freund did not use cocaine at Trent's apartment that night. The record does not reveal whether Freund used cocaine, or any other intoxicant, before he arrived.

8 . Diazepam is a drug that is used to counter the effects of anxiety and alcohol withdrawal.

9 . At Freund's trial, the court instructed the jury to disregard as hearsay Daniell’s testimony recounting this statement. We quote Trent’s out-of-court statement not for the “truth of the matter" that he asserts, but to point out that Trent was not in the main room when Freund stabbed Walker, and that Trent expressed no knowledge to Daniell that Freund was killing him. Fla. Stat. § 90.801 (l)(c) (1998).

10 . They called the vice squad officer who had arrested Mills on cocaine trafficking charges. They chose him because Trent had earlier told Mills that he did not trust that officer. They thus thought that he was unlikely to be under Trent's influence.

11 . The State Attorney’s Office did, however, delay Mills’s cocaine trafficking case until after the conclusion of Freund’s trial. The record does not indicate whether the State Attorney’s Office ever resumed that prosecution.

12 . In addition to representing Trent, the law firm represented Trent’s mother’s estate. Freund, however, does not allege any conflict of interest stemming from that representation.

13 .Also, prior to 1988, Trent referred Daniell to the law firm for representation on a traffic violation for speeding.

14 . We derive these facts only from Freund’s petition for writ of habeas corpus. Freund never proved these facts at any hearing.

15 . The record does not reveal who, if anyone, recommended the law firm to Freund.

16 . Specifically, the indictment alleged that Freund and Trent "did unlawfully from a premeditated design to effect the death of a human being, kill and murder RALPH WALKER, a human being by stabbing the said RALPH WALKER with a knife or other sharp instrument, contrary to Florida Statute 782.04(l)(a).”

17 .In fact, around the time of the press conference, on September 7, 1984, the law firm filed a "Motion to Extend Time for Filing Notice of Intent to Rely on the Defense of Insanity,” contending that it was "not presently in a position to state with particularity if [Freund] ... was insane at the time of the alleged offense ..., and if so the nature of the insanity.” The court apparently granted the motion.

18 . This motion was actually the second such motion that the law firm filed on Freund's behalf. In its initial motion dated February 21, 1985, the law firm sought a severance because of an out-of-court statement that Trent made to the media. Trent announced on television that he saw Freund kill Walker. The law firm argued that the admission of Trent’s out-of-court implication of Freund in a joint trial where Trent did not testify would violate Freund’s constitutional right to confront his accuser. See Bruton v. United States, 391 U.S. 123, 135-36, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). After a hearing, Judge Mounts ruled that he would grant the severance if the prosecution intended to use the statement at trial. Because Judge Mounts did not grant a severance based on this motion, we assume that the prosecution repudiated any intention to use it.

19 . In his letter, Duncan proceeded under the assumption that the law firm's representation of Trent and Freund was successive, as opposed to simultaneous. Further, Duncan premised that "[cjlearly, the prior representations of Mr. Trent are in no way connected to the instant homicide.”

20 . In fact, a few days before the hearing, the State Attorney's Office and Foley, on behalf of Freund, stipulated in writing that "no legal grounds exist for the granting of the severance" and that the court should try both Freund and Trent together.

21 . The following exchange between Roth and Colton took place:

Q. You have heard all this testimony from Mr. Trent?

A. Yes.

Q. In reference to, what you and I think we can discuss, other than legal issues? To some of the accusations made, do you deny those accusations?

A. I deny each and every accusation Mr. Trent has stated about me and I deny them uncategorically, unequivocably and totally.

THE COURT: Categorically.

22 . The record does not contain the transcripts of Trent's trial. Nor does the record reveal any further direct involvement on Trent’s part in Freund's prosecution.

23 . Specifically, Duncan questioned Mills as follows:

Q. You testified to this jury that you heard of or you learned about John Trent while you were in the Palm Beach County jail?

A. Yes.

Q. Through a Rosemary Lail?

A. Yes.

Q. Okay. And what Rosemary Lail told you was, “Listen, you’re looking at some big time and a fine and the guy you want to see in town is John Trent”?

A. Yes.

Q. And you had been arrested, I think you told the jury, for trafficking in cocaine?

A. Yes.

Q. You tried to sell some police officers cocaine?

A. I was like the middle person.

Q. Okay. How much cocaine were you trying to sell?

A. Four kilos. That’s what he requested, [the police officer]

requested and he received one kilo.

Q. How much is a kilo of cocaine, Ms. Mills? A. Two pounds.

Q. I'm sorry, the price?

A. The price? About thirty-seven thousand I think the price was.

Q. That’s what you were selling it for, thirty-seven thousand?

A. Yes.

Q. And you told this jury that you understood that what you had been arrested for carried with it a fifteen year mandatory minimum sentence?

A. Yes.

Q. You understood that if you were guilty and convicted of that, that you would do day for day fifteen years?

A. Yes.

Q. You were also aware that that carried with it in addition to the fifteen years a quarter of a million dollar fine?

A. Yes.

Q. So as a result of your conversation with Rosemary Lail, you were looking forward to meeting this guy who was going to get you out of a fifteen year prison sentence and a quarter of a million dollar fine?

A. I wasn't sure he was going to get me out.

Q. I understand that. But you certainly were going to check it out?

A. I was going to check it out, yes.

Q. In fact the first time you got out of jail, John Trent sent a cab for you, didn't he?

A. Yes.

Q. And he paid for the cab to bring you to the Palm Beach Hotel?

A. Yes.

Q. Tell the jury, Ms. Mills, the first thing that you said and did when you arrived at John Trent’s apartment the day you got out of jail in the cab that he paid for.

A. I went into the apartment. Rosemary Lail was there, John Trent was there and the first thing he did was lay out some cocaine,

Q. You did it?

A. Yes.

Q. The first thing off the bat?

A. Yes.

Q. The moment you get out of jail ... you're doing cocaine?

A. Yes.

Q. And did John Trent then begin to talk to you about a term we use down here in the courthouse, "substantial assistance”?

A. I don’t know if he mentioned that term or not but he did say he could help me.

Q. Okay. He may not have used the legal terminology, "substantial assistance,” but he explained to you, "Listen, Eleanor or Ms. Mills,” whatever he called you, "the only way you're going to get out from under this fifteen year mandatory minimum sentence and a quarter of a million dollar fine is to work with me”?

A. That’s what he said, yes.

Q. Okay.

A. He needed help also.

Q. What do you mean he needed help?

A. He was an informant. He was an informant for the law so he needed something too. He needed some assistance also. It would help him and Rosemary Lail and myself.-

Q. Okay. You talked about what it was though, substantial assistance, whereby you would work with the police to set somebody up?

A. We talked about it, yes.

Q. Well, you talked about the mechanics of it?

A. Yes.

Q. You would set somebody up, get them involved in a drug deal?

A. No. He was going to set someone up?

Q. He, being who?

A. John Trent.

Q. But the mechanics of it, Ms. Mills, and correct me if I'm wrong, was that John Trent using you would set somebody else up in a drug deal and they would get arrested and then you would help the Prosecutor and the State and you would get out of your problem?

A. That’s what he was saying.

Q. Okay. Now, John Trent told you that he had what, the West Palm Beach Police Department in his back pocket?

A. Yes.

Q. That he had the Palm Beach Police Department in his back pocket?

A. Yes. He had them all. He said he had a good rapport with them.

Q. Okay. And John Trent set himself up to you as being the big man?

A. Yes, he did.

Q. He could control things?

A. That's how it came off to me, yes.

Q. The first day you came out of jail and went there, he told you, "Don't worry about it, Ms. Mills, I’m going to handle things for you”? A. Yes.

Q. That was a great relief to you, wasn't it, ma’am?

A. No. Because I listened him but I told him that I didn't believe it until I seen it.

Q. But you weren’t the least bit relieved or encouraged that you were going to get out of this fifteen year mandatory sentence and quarter of a million dollar fine with what he said he was going to do for you?

A. I felt more comfortable, yes.

24 . Some states provide an insanity defense for crimes committed as a result of an irresistible impulse. See Model Penal Code § 4.01(1) (1995) (providing insanity defense where “as a result of mental disease or defect [the defendant] lacks substantial capacity to ... conform his conduct to the requirements of the law”). Florida law, however, permits the defense of insanity only where

at the time of an alleged crime a defendant was by reason of mental infirmity, disease or defect unable to understand the nature and quality of his act or its consequences, or if he did understand it, was incapable of distinguishing that which is right from that which is wrong.

Wheeler v. State, 344 So.2d 244, 245 n. 2 (Fla.1977).

25 . The record before us does not include transcripts of the penalty phase.

26 . Judge Mounts did not preside over the relevant state collateral review proceedings. Freund had successfully moved to ' disqualify Judge Mounts from resolving his 3.850 motion because of the judge’s admitted “firm, fixed and select feelings and opinions about the credibility of” Trent.

27 . According to Duncan, Freund never recanted his confession to his lawyers or psychiatrist. During the four to five month period following his initial confession to Foley, Freund was on a suicide watch at the jail. Duncan stated that during this time, Freund would simply say that he could not remember what had happened on the night of Walker's death.

28 . Because Freund filed his petition prior to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, the recent amendments to Chapter 153 of United States Code’s Title 28 do not apply to this case. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997).

29 . The magistrate judge also rejected Freund's claim that the law firm’s prior representation of Daniell concerning a pre-1988 traffic violation created another actual conflict of interest. Freund abandons this argument on appeal.

30 . In his 3:850 motion and 2254 petition, Freund contended that the law firm simultaneously represented both Freund and Trent. Both the state court and district court, however, found that — as a matter of historical fact — the law firm’s representation of Trent terminated no later than May 2, 1984, when Trent substituted Roth for the law firm to represent him in the aggravated assault and diazepam possession prosecutions. Additionally, the record is not in dispute that Freund became the law firm's client soon after the stabbing in late July 1984. Moreover, implicit in its order, the state court found credible Colton's live testimony at the 3.850 hearing that although Trent called him after the murder, they did not discuss the facts surrounding it. See generally Cave v. Singletary, 971 F.2d 1513, 1516 (11th Cir.1992) ("[S]tate court findings of fact can be inferred from its opinion and the record.”). On appeal, Freund advances no serious challenge to these express and implied findings. Thus, we presume correct the finding that the law firm's representation of Trent terminated prior to the commencement of the law firm's representation of Freund. See 28 U.S.C. § 2254(d) (1996) (state court findings of historical fact made after evi-dentiary hearing are presumed correct); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) ("Title 28 USC § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.”); accord Freund, 117 F.3d at 1570 n. 61.

31 . Although Smith speaks of a "witness,” we find no reason not to extend its rule of law to non-testifying, separately-tried codefendants (e.g., Trent).

32 . Of course, forrrter clients may waive rights to continuing confidentiality if they testify about the confidences (e.g., Trent's severance hearing testimony, and Mills's deposition testimony that Roth conducted in Duncan's presence). See generally Kraft, Inc. v. Alton Box Board Co. (In re Corrugated. Container Antitrust Litigation), 659 F.2d 1341, 1347 (5th Cir.1981) (“The presumption avoids compelling the former client to prove the very things that he seeks to keep confidential.”).

33 . Of course, any conflict of interest attributable to Colton imputes equally to "his current partners and employees.” Cox v. American Cast Iron Pipe Co., 847 F.2d 725, 729 (11th Cir.1988); see also Rule Regulating Fla. Bar 4-1.10(a) ("While lawyers are associated in a firm, none of them shall knowingly represent a client when any 1 of them practicing alone would be prohibited from doing so[.]”).

34 . Permitting "expert” testimony to establish ineffective assistance is inconsistent with our recognition that the issue involved is a mixed question of law and fact that the court decides. We recently explained as much in Provenzano v. Sin-gletary, a capital case in which the petitioner had offered the affidavit of an experienced criminal defense attorney (the Public Defender of Orange County, Florida) in an attempt to establish that the failure of trial counsel to seek a change of venue amounted to ineffective assistance of counsel. 148 F.3d 1327, 1331-32 (11th Cir.1998). In discussing why that affidavit was not enough to entitle the petitioner to an evidentiary hearing on ineffective assistance, we stated:

There is another more fundamental reason why Provenzano is not entitled to an evidentia-ry hearing on the reasonableness of his counsel’s decision to forego a change of venue, regardless of any affidavit he may have proffered. Our Jackson, Horton, and Bundy decisions establish that the reasonableness of a strategic choice is a question of law to be decided by the court, not a matter subject to factual inquiry and evidentiary proof. Accordingly, it would not matter if a petitioner could assemble affidavits from a dozen attorneys swearing that the strategy used at his trial was unreasonable. The question is not one to be decided by plebiscite, by affidavits, by deposition, or by live testimony. It is a question of law to be decided by state courts, by the district court, and by this Court, each in its own turn.

Provenzano, 148 F.3d at 1332. Likewise, in the present case, whether a law firm rendered ineffective assistance of counsel because of a conflict of interest, under a given set of facts, is "a question to be decided by the state courts, by the district court, and by this Court, each in its own turn.” Provenzano, 148 F.3d at 1332. Thus, it is not a matter subject to expert testimony.

35 . We assume, without deciding, that this brief consultation constituted a "representation" for purposes of a conflict of interest.

36 . Additionally, the truth of Trent's allegations was irrelevant to the fact-finding necessary to the charge of murder. Where, as here, the lawyer is not a fact witness, the lawyer's out-of-court conduct is never pertinent to the crime with which the client is charged. See generally Fla. Stat. §§ 90.401, 90.402 (1997).

37 . Although we have already found that no actual conflict existed, we feel compelled to address the adverse effect prong because our cases have sometimes discussed, in the context of actual conflict, issues (namely, blame-shifting) that are more appropriately analyzed in the context of adverse effect. See, e.g., Romero, 780 F.2d at 986.

38 . We note that Freund did not point to Stob’s trial testimony that during his visit to the jail Freund denied killing Walker as evidence that the law firm should have doubted his confession. Indeed, the State called Stob to testify in its rebuttal case (probably to show consciousness of guilt), indicating just the opposite, that is, that the law firm tactically determined that Stob lacked credibility.

39 . Freund raises three other issues on appeal:. (1) whether Judge Mounts’s failure to conduct an inquiry into the law firm’s conflicts of interest violated Freund’s Sixth Amendment right to effective assistance of counsel; (2) whether the law firm's failure to conduct a pretrial investigation into the guilt of Trent and the innocence of Freund violated Freund’s Sixth Amendment right to effective assistance of counsel; and (3) the district court erred in failing to conduct an evi-dentiary hearing. We affirm the district court’s judgment on these issues without discussion. See Eleventh Circuit Rule 36-1. But we do note that as to the third issue, Freund concedes that "the district court was not required to conduct an evidentiary hearing in the case at bar[.]" Appellant's En Banc Reply Letter at 14.

Also, in light of our holdings, we need not reach the fourth issue that brought this case en banc, whether Freund waived any conflicts of interest on the part of the law firm.