Keith Mountjoy v. Warden, New Hampshire State Prison

United States Court of Appeals
For the First Circuit
No. 00-1735
KEITH MOUNTJOY,
Petitioner, Appellant,
v.
WARDEN, NEW HAMPSHIRE STATE PRISON,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Boudin, Lynch, and Lipez, Circuit Judges.
Michael J. Sheehan for appellant.
Ann M. Rice, Senior Assistant Attorney General, with whom Philip
T. McLaughlin, Attorney General for the State of New Hampshire, was on
brief for appellee.
April 3, 2001

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LIPEZ, Circuit Judge. Habeas corpus petitioner Keith
Mountjoy argues that his convictions for sexual assault and burglary
must be set aside because the New Hampshire judge who presided over his
trial did not advise him about his defense counsel's possible conflict
of interest and make an appropriate inquiry on the record, thereby
violating his Sixth Amendment right to counsel. Federal review of
habeas petitions is governed by the Anti-Effective Death Penalty Act of
1996 (AEDPA), 28 U.S.C. § 2254(d) (Supp. II 1996). Under the standards
of AEDPA, the district court denied Mountjoy’s petition, finding that
the underlying decision of the New Hampshire Supreme Court was neither
contrary to nor an unreasonable application of clearly established
federal law as determined by the Supreme Court of the United States.
We affirm.
I.
The facts in this case are not disputed. In 1992, Keith
Mountjoy was charged with aggravated felonious sexual assault and
burglary. The victim was bound and raped by a man who came into her
apartment in the early hours of January 4, 1992. One of the
government’s witnesses was Dennis Pratte, a police officer for the town
of Newmarket who responded when the victim’s son called the police.
Officer Pratte testified about interviewing the victim and collecting
physical evidence. He gave testimony favorable to Mountjoy, reporting

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that the victim said she could not identify her attacker on the morning
after she was raped.
Mountjoy’s first and second trials ended in hung juries.
Defense counsel Stephen Jeffco represented Mountjoy at both trials, and
Officer Pratte testified for the government at both. In January 1994
Jeffco agreed to defend Officer Pratte against charges of sexually
assaulting his stepdaughter. Shortly before Mountjoy’s third trial
began on April 11, 1994, Jeffco told the trial judge that he was
representing Pratte, who was then awaiting trial. Jeffco said he did
not think the simultaneous representation of Mountjoy and Pratte posed
a conflict of interest for him. The prosecutor agreed. Jeffco also
informed the court that he had told Mountjoy he was serving as Pratte’s
lawyer, and that Mountjoy wanted Jeffco to continue representing him.
Jeffco’s disclosure to the court took place in an unrecorded in-
chambers conference. Mountjoy was not present, and the judge did not
speak to him about Jeffco’s possible conflict of interest. Mountjoy
did not object to Jeffco’s representation at trial.
While the record does not include transcripts of the first
two trials, Mountjoy does not dispute that Pratte gave essentially the
same testimony at the third trial that he had given at the first two,
and that Jeffco cross-examined him in much the same way. Pratte’s

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1 The victim lived in the same apartment complex as Mountjoy, and
she testified that a few days after being attacked she heard him
outside calling his dogs and identified him by voice as her assailant.
Officer Pratte testified, however, that the morning after the rape the
victim said she had no idea who the attacker was, and that she could
not clearly hear his voice because it was muffled by something that
covered the lower half of his face. On cross-examination by Jeffco,
Officer Pratte added that the victim told him that her attacker did not
have a distinctive accent.
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testimony was again helpful to the defense.1 In his closing argument
to the jury, Jeffco generally criticized Pratte's police department for
its investigation of the crime, particularly because of its failure to
follow up on a lead about a possible second suspect.
On April 15, 1994, the jury convicted Mountjoy of both
charges. The court imposed a 15 to 30 year sentence. On May 23,
Mountjoy filed a pro se motion for judgment of acquittal on the ground
that his counsel had a conflict of interest. The trial court appointed
a public defender to represent Mountjoy during post-trial proceedings.
In February 1995, the public defender filed a motion to set aside the
verdict based on the court’s failure to inquire into Jeffco’s conflict
of interest and ineffective assistance of counsel. The trial court
held a hearing on the matter on August 10, 1995. Mountjoy testified
that Jeffco did not tell him about the simultaneous representation of
Officer Pratte. In a deposition, Jeffco said that he told Mountjoy he
was representing Pratte during a brief conversation on the steps of the
courthouse just before the beginning of the third trial. Jeffco said
he did not specifically remember Mountjoy’s response, but that Mountjoy

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2 Mountjoy previously filed a habeas petition in federal court on
October 8, 1997 that was dismissed for lack of exhaustion.
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had consented to the concurrent representation. When asked about his
cross-examination of Pratte, Jeffco said he did not try to impeach
Pratte because Pratte’s testimony was exculpatory.
The trial court denied Mountjoy’s motion for a new trial. The
court found that Mountjoy knew about the concurrent representation,
that Jeffco had defended the case in the same way at the third trial as
he had at the first and second ones, and that the defense would have
called Pratte as a witness because of his exculpatory testimony had the
government not done so. The court acknowledged that it should have
discussed Jeffco’s representation of Pratte with Mountjoy before trial,
but held that its failure to do so did not warrant reversal. The court
also denied Mountjoy’s claim that Jeffco did not provide Mountjoy
effective assistance of counsel because of the possible conflict.
Mountjoy appealed to the New Hampshire Supreme Court. In a
published opinion, the court denied relief. See State v. Mountjoy,
708 A.2d 682 (N.H. 1998). Mountjoy filed a petition for habeas relief
in state court on July 7, 1999.2 The lower state court held a hearing
on September 10, 1999, and denied relief on September 23. The New
Hampshire Supreme Court declined to hear Mountjoy’s collateral appeal.
Mountjoy filed a habeas petition in federal court on January 12, 2000,
seeking collateral review of three claims: the trial judge's failure to

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discuss with him before trial his right to conflict-free
representation, ineffective assistance of appellate counsel, and delay
in processing his state court appeal. After the district court denied
the petition on all three grounds, it granted Mountjoy’s request for a
certificate of appealability as to whether the trial court proceedings
violated Mountjoy's "constitutional right to conflict-free counsel."
II.
AEDPA amended the federal law governing review of habeas
petitions. In relevant part, the 1996 statute provides that
(d) An application for a writ of habeas
corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be
granted with respect to any claim that was
adjudicated on the merits in State court
proceedings unless the adjudication of the claim-
-
(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal law,
as determined by the Supreme Court of the United
States.
28 U.S.C. § 2254(d)(1). AEDPA "places a new constraint on the power of
a federal habeas court to grant a state prisoner’s application for a
writ of habeas corpus." Williams v. Taylor, 529 U.S. 362, 412 (2000).
Under the statute, "we focus the lens of our inquiry on the state . .
. court's decision and ask whether the court's application of the
analytic framework dictated by the relevant Supreme Court precedents

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was objectively unreasonable" or contrary to that law. See Williams v.
Matesanz, 230 F.3d 421, 427-28 (1st Cir. 2000).
AEDPA’s "contrary to" and "unreasonable application" clauses
yield two separate categories of analysis. Taylor, 529 U.S. at 405;
O’Brien v. Dubois, 145 F.3d 16, 24 (1st Cir. 1998). A state court
decision is "contrary to" federal law as determined by the Supreme
Court, and so may be set aside on federal habeas review, if it "applies
a rule that contradicts the governing law set forth in our cases" or
"confronts a set of facts that are materially indistinguishable from a
decision of this Court and nevertheless arrives at a result different
from our precedent." Taylor, 529 U.S. at 406.
Alternately, a state court decision may be set aside as an
"unreasonable application" of federal law as determined by the Supreme
Court "if the state court identifies the correct governing legal rule
from this Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case," or "if the state court either
unreasonably extends a legal principle from our precedent to a new
context where it should not apply or unreasonably refuses to extend
that principle to a new context where it should apply." Id. at 408.
In defining an unreasonable application of federal law, the Court said
that "the most important point is that an unreasonable application of
federal law is different from an incorrect application of federal law."
Id. at 410 (emphasis in original). Thus under AEDPA, "a federal habeas

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court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather,
that application must also be unreasonable." Id. at 411.
In Mountjoy’s case, the relevant state court decision for
review under AEDPA is the New Hampshire Supreme Court decision on
direct appeal in State v. Mountjoy, 708 A.2d 682 (N.H. 1998). As the
New Hampshire court recognized, the governing Supreme Court precedents
for Mountjoy’s claim that the trial court’s failure to advise him about
Jeffco’s possible conflict of interest violated his Sixth Amendment
rights are Holloway v. Arkansas, 435 U.S. 475 (1978); Cuyler v.
Sullivan, 446 U.S. 335 (1980); and Wood v. Georgia, 450 U.S. 261
(1981). "To the extent that inferior federal courts have decided
factually similar cases, reference to those decisions is appropriate in
assessing the reasonableness vel non [under AEDPA] of the state court's
treatment of the contested issue." O'Brien, 145 F.3d at 25.
The New Hampshire Supreme Court neither applied a rule that
contradicted the Supreme Court’s holdings in these cases nor reached a
different result based on a set of materially indistinguishable facts.
Thus AEDPA’s "contrary to" clause does not apply here. See Taylor, 529
U.S. at 406 ("a run-of-the-mill state-court decision applying the
correct legal rule from our cases to the facts of a prisoner’s case
would not fit comfortably within § 2254(d)(1)’s 'contrary to' clause");

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Matesanz, 230 F.3d at 426 ("A state court decision that applies the
correct legal rule but reaches an independent outcome on different
facts cannot be deemed to run at cross purposes to Supreme Court
precedent."). We thus turn to AEDPA’s second inquiry: whether the New
Hampshire court unreasonably applied Holloway, Sullivan, and Wood to
the facts of Mountjoy’s case. "This reduces to a question of whether
the state court’s derivation of a case-specific rule from the Court’s
generally relevant jurisprudence appears objectively reasonable."
O’Brien, 145 F.3d at 25.
III.
A. Relevant Supreme Court Precedents
The Sixth Amendment guarantees a defendant's right to counsel
in all criminal prosecutions. U.S. Const. amend. VI. Defendants have
a "correlative right to representation that is free from conflicts of
interest." Wood, 450 U.S. at 271. Even if defense counsel has a
conflict, however, the court may sometimes allow the attorney to
continue with the representation if the defendant makes a voluntary,
knowing, and intelligent waiver. See Wheat v. United States, 486 U.S.
153, 163 (1988) (district courts have substantial latitude in declining
to grant waivers); Holloway, 435 U.S. at 483 n.5 (a defendant may waive
his right to representation that is "unhindered by a conflict of
interests"). The purpose of a trial court's inquiry into a possible
conflict is to "evaluate the conflict and ensure it is either

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eliminated or waived." United States v. Rogers, 209 F.3d 139, 146 (2d
Cir. 2000). The inquiry thus includes an on-the-record discussion of
the representation with the defendant. Cf. Fed. R. Crim. P. 44(c)
("[T]he court shall promptly inquire with respect to such joint
representation and shall personally advise each defendant of the right
to the effective assistance of counsel, including separate
representation."). When courts do not obtain a waiver to conflict-free
counsel (and even sometimes when they do), defendants may challenge the
representation on appeal by bringing an ineffective assistance claim.
See Wheat, 486 U.S. at 162.
The extent of the trial court's responsibility to make an
inquiry into the defendant's understanding of a possible conflict is
the subject of the Supreme Court's decisions in Holloway, Sullivan, and
Wood. In Holloway, one defense lawyer represented three co-
defendants. In pre-trial motions and at trial, the lawyer repeatedly
objected to the joint representation, telling the judge that his
conflicting loyalties to his clients hindered his ability to advocate
for them. The judge refused to appoint separate counsel and did not
adequately inquire into the risk posed by the conflict. Holloway, 435
U.S. at 484. On appeal, the Supreme Court held that the Sixth
Amendment requires automatic reversal of a conviction "whenever a trial
court improperly requires joint representation over timely objection."
Id. at 488. Holloway premised its holding on the shared responsibility

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3 The Court has explained that judges sometimes must serve as a
check against defense attorneys who may be less sensitive about
avoiding such conflicts than they should be. Wheat, 486 U.S. at 163
("Nor is it amiss to observe that the willingness of an attorney to
obtain such waivers [of conflicts of interest] from his clients may
bear an inverse relation to the care with which he conveys all the
necessary information to them.").
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of the trial court and defense counsel to prevent conflicts from
infringing on the defendant’s Sixth Amendment rights. Id. at 485.3
In Sullivan, the Court considered two questions left open in
Holloway: whether a state trial judge must inquire about multiple
representation even though no party objects at trial, and whether the
"mere possibility of a conflict" means that a defendant’s Sixth
Amendment rights were violated. Sullivan, 446 U.S. at 345.
Emphasizing defense counsel’s ethical obligation to advise a trial
court when a conflict arises, the Court said that when defense counsel
does not alert the court to a conflict by objecting, "nothing in our
precedents suggests that the Sixth Amendment requires state courts
themselves to initiate inquiries into the propriety of multiple
representation in every case." Id. at 346. At the same time, the Court
left open some possibility, albeit a narrow one, that Holloway may
apply without an objection by the defendant.
Absent special circumstances, therefore, trial
courts may assume either that multiple
representation entails no conflict or that the
lawyer and his clients knowingly accept such risk
of conflict as may exist. . . . Unless the trial
court knows or reasonably should know that a

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particular conflict exists, the court need not
initiate an inquiry.
Id. at 346-47 (footnotes omitted).
Addressing the relationship between a possible conflict and
a Sixth Amendment violation, Sullivan next held that when a defendant
does not object to a possible conflict and the trial judge is not
otherwise alerted to such a conflict, the defendant "must demonstrate
that an actual conflict of interest adversely affected his lawyer’s
performance." Id. at 348. This showing of harm need not, however,
rise to the level of prejudice. Instead, "prejudice is presumed when
counsel is burdened by an actual conflict of interest." Strickland v.
Washington, 466 U.S. 668, 692 (1984). This presumption means that a
defendant need not show that he would not have been convicted but for
choices his lawyer made because of conflicting loyalties. Sullivan,
446 U.S. at 349-50. Instead, the necessary showing might involve
failure to cross-examine a witness whose testimony favored one
defendant in a joint representation over the other. Id. at 350.
In Wood v. Georgia, in an unusual factual context, the Court
again addressed the question of a trial court's responsibility to
inquire about a possible conflict. In Wood, three employees of an
adult theater and bookstore were convicted of distributing obscene
materials and sentenced to probation on the condition that they make
installment payments toward $5,000 and $10,000 fines. The defendants

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defaulted on their payments, saying that they had expected their
employer to pay the fines for them. The Supreme Court granted
certiorari to determine whether imprisoning a probationer because he
cannot pay a fine violates the Equal Protection Clause. Wood, 450 U.S.
at 264. After hearing the case, however, the Court decided it on a
different due process ground. The Court noted that the employer’s
lawyer had represented the defendants throughout the proceedings
against them, and that this lawyer did not challenge the amount of the
fines imposed at sentencing. Id. at 266-268. The trial court was
aware of these circumstances and the prosecutor raised the question of
whether they gave rise to a conflict of interest. Id. at 272-73.
Based on the record, the Court concluded that a possible
conflict of interest was "sufficiently apparent . . . to impose upon
the court a duty to inquire further." Id. at 272. In response to the
dissent's argument that the majority had "gone beyond" Sullivan, the
Court said:
nothing in that case rules out the raising of a
conflict-of-interest problem that is apparent in
the record. Moreover, Sullivan mandates a
reversal when the trial court has failed to make
an inquiry even though it 'knows or reasonably
should know that a particular conflict exists.'
Id. at 272 n.18 (quoting Sullivan, 446 U.S. at 347).
Wood thus emphasized that trial judges have a duty to inquire
not only when defendants object to a possible conflict, but also when

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trial judges are or should be independently aware of a possible
conflict. Yet the Wood Court did not impose the remedy of a new trial
based on the trial judge's failure to make the required inquiry,
despite the above-quoted language from its own footnote about Sullivan
mandating reversal under such circumstances. Moreover, without
discussing the implications for Holloway's rule of automatic reversal,
the Court remanded the case for a hearing to determine "whether the
conflict of interest that this record strongly suggests actually
existed." Id. at 273.
Not surprisingly, the circuit courts have ruled differently
in the wake of Wood about the type of remedy that is triggered when the
trial court has a duty to inquire about a possible conflict and fails
to do so. Some courts have reversed for a new trial whenever the
possibility of a conflict was sufficiently apparent to impose a duty to
inquire. See Riggs v. United States, 209 F.3d 828, 831 n.1 (6th Cir.
2000); United States v. Cook, 45 F.3d 388, 393-94 (10th Cir. 1995);
Dawan v. Lockhart, 980 F.2d 470, 474-75 (8th Cir. 1992). One court has
held that a post-trial inquiry into a possible conflict that was
evident before trial does not suffice. See Rogers, 209 F.3d at 146.
By contrast, we have held that in light of Wood, automatic reversal is
not required if a trial judge holds a post-trial hearing about whether
an actual conflict developed that adversely affected counsel's
performance, the standard for reversal under Sullivan. Brien v. United

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States, 695 F.2d 10, 15 n.10 (1st Cir. 1982) (petitioner's § 2255
hearing could "serve the same function that the remand served in
Wood"). With this background in mind, we turn to the New Hampshire
Supreme Court's decision in Mountjoy's appeal.
B. The New Hampshire Supreme Court’s Decision
On appeal to the New Hampshire Supreme Court, Mountjoy argued
that the trial court’s failure to advise him about Jeffco’s possible
conflict of interest required reversal of his conviction under Holloway
and Hopps v. State Board of Parole, 500 A.2d 355 (N.H. 1985). In
Hopps, the state Supreme Court established a prophylactic rule for
criminal cases involving multiple representation. The rule requires
defense counsel and the trial court to make a record of investigating
the possibility of a conflict of interest and of each client’s informed
consent to the dual representation. Id. at 359. The Hopps court
stated that judicial inquiry into possible conflicts was not
constitutionally required, but was "the better course" because of the
risk of conflict posed by multiple representation and the desirability
of avoiding post-conviction challenges. Id.
In deciding Mountjoy’s appeal, the New Hampshire Supreme
Court held that Hopps should apply when the trial court is made aware
of a possible conflict based on a defense attorney’s concurrent
representation of a defendant and a government witness because of the
"similar risk of conflict in such dual representation." Mountjoy, 708

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4 The court said that based on its own precedent Sullivan applied
to possible conflicts arising from situations other than joint
representation. See Mountjoy, 708 A.2d at 684 (citing State v. Cyrs,
529 A.2d 947, 950 (N.H. 1987)). This is the majority position among the
circuits. See, e.g., Riggs v. United States, 209 F.3d 828, 832 n.1
(6th Cir. 2000); Atley v. Ault, 191 F.3d 865, 870 n.4 (8th Cir. 1999);
Spreitzer v. Peters, 114 F.3d 1435, 1451 (7th Cir. 1997); Porter v.
Singletary, 14 F.3d 554, 560 (11th Cir. 1994).
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A.2d at 683-84. The court said that Jeffco’s disclosure to the trial
judge that he was representing Pratte should have prompted the judge to
discuss the possible conflict with Mountjoy. See id.
The court next considered whether Mountjoy was entitled to
a reversal of his conviction because of the trial court's failure to
conduct a Hopps inquiry and secure the defendant's waiver of conflict-
free counsel. The court concluded that Mountjoy was not entitled to
Holloway's automatic reversal because such reversal is mandated only
when "a trial court improperly requires joint representation [of
codefendants] over timely objection." Id. at 684 (citing Holloway, 435
U.S. at 488). The court ruled that the failure to inquire "merely
requires this court to address a defendant's claim that he was denied
the effective assistance of counsel because of a conflict of interest."
Id. Noting that "[o]ur State constitutional standards are identical to
their federal counterparts on this issue," and citing Sullivan as the
federal standard, the court said that Mountjoy needed to show that
Jeffco's conflict adversely affected his performance at the third
trial.4 The court then stated the standard for showing adverse effect

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5 On this point the New Hampshire Supreme Court cited its own
precedent, State v. Guaraldi, 500 A.2d 360, 365 (N.H. 1985), which in
turns cites Brien, 695 F.2d at 15.
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that we set forth in Brien v. United States, 695 F.2d 10.5 See
Mountjoy, 708 A.2d at 684. In Brien, we construed Sullivan as
requiring a petitioner to show first that his lawyer might have pursued
"some plausible alternative defense strategy or tactic," and second
that "the alternative defense was inherently in conflict with the
attorney’s other loyalties or interests." Id. at 15. Rather than
testing Mountjoy's claim against this standard, however, the New
Hampshire court found that Mountjoy had waived the issue of whether
Jeffco’s conflict adversely affected his performance because he had not
briefed that issue on appeal. Mountjoy, 708 A.2d at 685.
In closing, the court said that Wood also did not entitle
Mountjoy to the relief that he sought because the outcome in that case
was a remand rather than a reversal. Id. Since the trial court held
a post-trial hearing on Mountjoy's claim and determined that Jeffco’s
representation was not affected by an actual conflict, Mountjoy had
already received the further consideration provided in Wood by a
remand. Id.
The New Hampshire Supreme Court's conclusion that Holloway
and Wood did not require reversal of Mountjoy's conviction was a

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6We think the New Hampshire Supreme Court's application of these
precedents was largely correct. Our only quibble is that the court did
not seem to recognize that the Hopps duty of inquiry, which applies
when a trial judge "is made aware of any potential for, or actual,
conflict of interest," Mountjoy, 708 A.2d at 683, is essentially a
statement of the constitutional rule set forth in Sullivan and Wood.
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reasonable application of Supreme Court precedent.6 It is true that the
trial court knew about Jeffco's possible conflict and so had a duty to
inquire under Sullivan and Wood. See also United States v. Hernandez-
Lebron, 23 F.3d 600, 604 (1st Cir. 1994) ("[I]nquiries must be made
into the propriety of multiple representation whenever the trial court
knows or reasonably should know that a particular conflict exists.").
However, despite Wood's statement that Sullivan mandates reversal when
the court does not make the required inquiry, the Supreme Court in Wood
did not grant a reversal in light of the lawyer's possible conflict of
interest, but rather remanded for further investigation. As the New
Hampshire court recognized, in Mountjoy's case that investigation
occurred when the trial judge held a post-trial hearing to determine
whether an actual conflict burdened Jeffco's representation.
The New Hampshire Supreme Court took the same approach to the
Supreme Court case law that this court took in Brien v. United States,
695 F.2d 10. In that case, the defendant argued in a federal habeas
petition that he was entitled to reversal under Holloway because he had
been represented at trial by a lawyer who belonged to the same law firm
as his codefendant's lawyer. While Brien's counsel did not bring the

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conflict to the court's attention before trial, his codefendant's
counsel did. In response to Brien's habeas petition, the district
court held an evidentiary hearing, just as the New Hampshire court did
after Mountjoy's trial. Based on the evidence presented at the
hearing, the district court found that Brien had not met his burden of
proving an actual conflict under Sullivan. Id. at 15.
On appeal in Brien, we asked whether the trial court's
failure to inquire about the possible conflict before trial itself
required reversal of Brien's conviction, and found that it did not. We
reasoned that by remanding Wood for further inquiry by the trial court,
the Supreme Court signaled that convictions should only be reversed if
there is a finding of an actual conflict that adversely affected the
lawyer’s performance. Id. at 15 n.10. We thus concluded that the
petitioner's habeas hearing could "serve the same function that the
remand served in Wood." Id.
Like the habeas hearing in Brien, the post-trial evidentiary
hearing that the New Hampshire trial court conducted in response to
Mountjoy's motion for a new trial also served the purpose of the remand
in Wood. The court reexamined the trial transcript and the pleadings,
and heard testimony about Jeffco's possible conflict. The court's
factual findings go directly to the question of whether Jeffco's
representation of Pratte adversely affected his performance as
Mountjoy's counsel, the standard for reversal under Sullivan. Jeffco

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7The state habeas court also addressed this actual conflict issue
in its consideration of Mountjoy's claim of ineffective assistance of
appellate counsel. In the state habeas proceeding, which included
another evidentiary hearing on the actual conflict issue, Mountjoy
argued that his appellate counsel was ineffective because he failed to
argue to the New Hampshire Supreme Court that Jeffco had an actual
conflict that adversely affected his performance. Mountjoy reiterated
this claim in his habeas petition to the federal district court.
Applying AEDPA, t he district court found that the state habeas court
reasonably applied federal law, denying Mountjoy's ineffective
assistance claim after reviewing the three alternative strategies that
Mountjoy argued Jeffco might have pursued at the third trial had he not
been representing Pratte. Mountjoy argued that had Jeffco not
concurrently represented Pratte, he could have (1) argued to the jury
that the police, not the victim, originally suggested Mountjoy as the
attacker; (2) mounted a stronger attack on the police investigation of
the crime; (3) impeached Pratte by questioning him about his indictment
for sexual assault. The state habeas court found that the first two
theories were not supported by the evidence, and that the third one was
precluded by the rules of evidence and thus found that Mountjoy's
appellate counsel made a "prudent and reasonable decision" not to
pursue the actual conflict claim under Burger v. Kemp, 483 U.S. 776,
784 (1987) (appellate counsel has discretion to choose stronger claims
over weaker ones).
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had represented Mountjoy in two previous trials and had cross-examined
Pratte at both, and the trial court concluded that he conducted the
cross-examination at the third trial in the same way that he had before
he became Pratte's lawyer. The court thus found that the facts of the
case lent unusual certainty to the conclusion that Jeffco's dual
representation did not cause Mountjoy harm.7
We conclude, therefore, that the New Hampshire Supreme Court
reasonably applied Holloway, Sullivan, and Wood in holding that the
trial court's failure to advise Mountjoy about his lawyer's possible
conflict of interest did not require automatic reversal, and that the

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post-trial evidentiary hearing held on the matter served the same
function as the remand granted in Wood. Following the standards of
AEDPA, we affirm.
Affirmed.

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