00-3791 Holleman v. Cotton

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“Holleman had a duty to initiate an inquiry into all relevant claims. One of those relevant claims is the conflict of interest claim. And multiple representation easily may lead to a conflict of interest claim. The Supreme Court itself had recognized that possible conflicts inhere ‘in almost all instances of multiple representation.’ Mickens, 122 S. Ct. at 1242. Holleman himself persisted in the belief that there was something suspicious about the multiple representation in his case. After being informed about the multiple representation, Evans had uncovered the actual conflict because Evans believed that there should have been a waiver of any possible conflict arising from the multiple representation. Deposition of Jeffery Evans (May 1, 2000), p. 11, at 22-23. Thus, Holleman, based on the existence of multiple representation coupled with his own persistent suspicion, should have pursued the conflict of interest claim. While Holleman might eventually conclude that there was no basis for such a claim (and he would be correct if the only fact he learned after a ‘reasonable and diligent investigation’ was that Frank had represented Love), he was under a duty to make at least minimal inquiries.

“Holleman never made an inquiry into the conflict claim. Thus, he cannot be said to have conducted ‘a reasonable and diligent investigation.’ However, on this issue, Holleman argues that he did satisfy the diligence requirement when he sent two letters to Frank asking him about theories of appeal, and Frank told Holleman to discuss such issues with his appellate counsel. But, of course, Holleman’s inquiry was not specific to conflicts of interest, and Frank’s advisement did not preclude Holleman from inquiring specifically about conflicts of interest when he was preparing his first federal collateral appeal.”

Affirmed.

Appeal from the United States District Court for the Northern District of Indiana, Miller, J., Cudahy, J.