Robert Lee Holleman v. Zettie Cotton , 301 F.3d 737 ( 2002 )

CUDAHY, Circuit Judge.

In this successive appeal, Robert Holle-man argues that the district court erred in concluding that he could not demonstrate cause and prejudice with respect to his ineffective assistance of counsel claims so as to survive a dismissal of his second petition under 28 U.S.C. § 2254 as an abuse of the writ. We affirm.

I.

Holleman was one of four people charged with the murder of Robin Opfer in 1977. Holleman v. Miller, 101 F.Supp.2d 700, 701 (N.D.Ind.2000). Prior to his indictment for the murder, Holleman had made some incriminating statements to the police, but his statements also implicated Frank Love as the shooter. Holleman v. Duckworth, 155 F.3d 906, 908 (7th Cir.1998). The trial judge, Lake County Superior Court Judge James Clement initially appointed Stanley Jablonski to represent Holleman. Holleman, 101 F.Supp.2d at 701. When a disagreement arose between Holleman and Jablonski, Judge Clement allowed Jablonski to withdraw and appointed James Frank to represent Holleman. Id. at 702. Frank had earlier represented co-defendant Love in a separate trial. Id. at 701. The district court found that Frank was chosen because he was familiar with the case and Holleman had filed a speedy trial motion. Id. at 702. Before appointing Frank to represent Holleman, Judge Clement prudently asked Frank whether there would be any conflict if Frank represented Holleman, and Frank stated that he saw none. Id. at 702. This inquiry occurred outside of Holleman’s presence, at a hearing unrelated to his case. Id.

Frank was available to represent Holle-man because he had been successful in persuading the prosecutor to dismiss the murder charges against Love. The prosecutor had dismissed those charges without prejudice based upon insufficient evidence; Frank had persuaded the prosecutor that Love was elsewhere (in South Bend) at the time that Holleman had said Love was shooting Opfer. Id. As part of an alibi defense in the Love trial, Frank had notified the prosecutor that he would call Mary Schaar to testify in support of Love’s alibi. Id.

During Holleman’s trial, the prosecutor called the same Mary Schaar as a surprise witness, apparently to cast doubt on Holle-man’s statements attributing the shooting to Love. Id. Frank unsuccessfully objected to the Schaar testimony on grounds of relevancy, but he did not cross-examine Schaar. Id. Later, Frank admitted that he did not cross-examine Schaar to impeach her credibility because he feared that that course could lead to the prosecution’s re-instituting the charges against Love. Id.

Holleman was acquitted of first degree murder but he was convicted of felony murder. He was sentenced to life imprisonment. Holleman, 155 F.3d at 908. This outcome suggests that the jury was not' persuaded by the efforts of the state to picture Holleman as the shooter instead of Love (whom Holleman had fingered as the shooter).

After exhausting his direct appeal and state post-conviction procedures in 1981, Holleman filed an application for federal collateral relief pursuant to 28 U.S.C. § 2254, but did not raise a claim of ineffective assistance of counsel in that petition. That petition was denied, and this Court affirmed the denial. Holleman v. Duckworth, 700 F.2d 391 (7th Cir.1983). Subsequently, Jeffery Evans was assigned to be Holleman’s new appellate counsel. After a diligent search, Evans located Frank (who had been disbarred at that point) and got Frank to admit that Frank had an actual conflict of interest that adversely affected his performance during Holleman’s trial.

On February 21, 1995, Holleman filed a second habeas petition, in which he raised two claims (among others). First, he argued that the trial court failed to make a proper inquiry into whether Frank had a conflict of interest — the “judicial inquiry” claim. See Holloway v. Arkansas, 435 U.S. 475, 483-84, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1977) (holding that a trial court must inquire into the propriety of multiple representation where one party makes a timely objection); Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (holding that a trial court needs to initiate an inquiry only if it knows or reasonably should know that a particular conflict exists). Second, he argued that Frank’s conflict of interest precluded Frank from providing effective assistance of counsel — •the “attorney conflict” claim. See Cuyler, 446 U.S. at 350, 100 S.Ct. 1708 (holding that an actual conflict of interest that adversely affects defense counsel’s performance is a violation of the Sixth Amendment). The state objected that Holleman failed to raise these claims in his first petition, so Holleman’s second petition should be dismissed as an abuse of the writ unless Holleman could show cause and prejudice. See McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

On May 31, 1995, the district court denied the petition as an abuse of the writ. On September 15, 1998, we vacated the district court’s order and remanded for an evidentiary hearing to determine whether Holleman could demonstrate cause and prejudice. Holleman, 155 F.3d at 911-12 (“Accordingly, we remand the case for an evidentiary hearing to establish what the petitioner knew about the claim, when he knew it, and the earliest he reasonably could have known it.”). We held that the record before us did not establish that Holleman knew of the attorney conflict or about the trial judge’s knowledge of a potential conflict of interest. Id. at 910-11. Further, the record did not “establish as a matter of law whether what Holleman did not know but could have ‘discovered upon reasonable investigation’ would have supported a claim for relief.” Id. at 911 (quoting McCleskey, 499 U.S. at 498, 111 S.Ct. 1454).¹ Therefore, we remanded the case to a different judge for an evidentiary hearing to determine whether Holleman “could have discovered through reasonable diligence and investigation a conflict of interest claim.” Id. (internal citation and quotations omitted). Further, we held that Holleman must also demonstrate prejudice to overcome the abuse-of-the-writ defense. Id. We indicated that the record before us suggested that the state trial judge knew or should have known of the possibility of a conflict of interest such that the trial judge should have made an adequate inquiry into the conflict. Id.

An evidentiary hearing was conducted on May 25, 2000. After that hearing, the district court denied Holleman’s second petition as an abuse of the writ. Holleman, 101 F.Supp.2d at 706. The district court found that the trial judge did not know, and could not have known, about the conflict. Id. at 704-5. The district court thus concluded that Holleman could not show prejudice with respect to his judicial inquiry claim. Id. at 705. The district court also found that Holleman could have raised the judicial inquiry claim in his first petition, but that he inexcusably failed to do so. Id. at 705. Further, the district court found that Holleman had reason to inquire into the attorney conflict claim, and that if he had inquired, he would have been told of the conflict by Frank. Id. at 706. Thus, the district court concluded that Holleman could not show cause with respect to either claim. Id. Holleman appeals.

II.

This court has jurisdiction under 28 U.S.C. § 1921. We review issues of law de novo, and issues of fact, for clear error. See Dixon v. Snyder, 266 F.3d 693, 700 (7th Cir.2001). A factual finding is clearly erroneous when, after reviewing the com-píete record, we are left with “the definite and firm conviction that a mistake has been committed.” Thornton v. Brown, 47 F.3d 194, 196 (7th Cir.1995). However, in habeas corpus proceedings, mixed questions of law and fact are reviewed de novo. See Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (same).

III.

“The doctrines of procedural default and abuse-of-the-writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have an opportunity to address at a prior, appropriate time; and both doctrines seek to vindicate the State’s interest in the finality of its criminal judgments.” McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). The cause and prejudice standard in an abuse-of-the-writ case is the same as in a procedural default case. Id. at 494-95, 111 S.Ct. 1454. “The standard is an objective one.” Id. at 495, 111 S.Ct. 1454. Holleman can show cause if he can demonstrate that he did not know, and could not have discovered after reasonable investigation, facts sufficient to raise the claim in his first petition. Id. at 499, 111 S.Ct. 1454. Holleman can show prejudice as to the attorney conflict claim if he can demonstrate that an actual conflict adversely affected the performance of his trial counsel and as to the judicial inquiry claim if the claim could have succeeded. See Cuyler v. Sullivan, 446 U.S. 335, 348-349, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (counsel’s conflict of interest); Mickens v. Taylor, — U.S. -, 122 S.Ct. 1237, 1244, 152 L.Ed.2d 291 (2002) (trial court’s failure to inquire).

We affirm the dismissal of Holleman’s second petition because Holleman cannot demonstrate both cause and prejudice to meet the abuse-of-writ objection as to either claim. While he may be able to demonstrate cause with respect to his judicial inquiry claim, he cannot demonstrate prejudice with respect to that claim. Holle-man cannot show prejudice from the judicial inquiry claim because the claim would not have succeeded since the trial judge never had a duty to inquire more deeply than he did into Frank’s conflict. The reverse is true with respect to Holleman’s attorney conflict claim. He can demonstrate prejudice with respect to that claim, but he cannot demonstrate cause for failing to raise that claim in his first petition. Holleman cannot demonstrate cause because he failed to ask Frank whether Frank had been burdened by a conflict (or to make an inquiry of another equally plausible source). If Frank had enlightened Holleman as to the conflict, Holleman could have brought his claim based on this information. If Frank had denied the existence of a conflict, Holleman would have established cause (by an external impediment) for not including the attorney conflict claim.

A.

Under Holloway and Cuyler, a trial court has the duty to inquire adequately into a trial counsel’s conflict of interest if it knows or reasonably should know that a particular conflict exists. See Holloway, 435 U.S. at 483-84, 98 S.Ct. 1173 (establishing duty); Cuyler, 446 U.S. at 347, 100 S.Ct. 1708 (holding that a trial court must make an inquiry if it knows or reasonably should know that a particular conflict exists). However, “[a]bsent special circumstances, ... 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.” Cuyler, 446 U.S. at 346, 100 S.Ct. 1708. While the Supreme Court recently has cast doubt on whether the principle of Cuyler v. Sullivan should be applied to cases where trial judges have failed to inquire into conflicts of interest in successive representation cases, see Mickens, — U.S. at -, 122 S.Ct. at 1245, even if Cuyler applied in the present case, Holleman cannot show prejudice with respect to his judicial inquiry claim.

Here, the trial court’s duty to inquire could be triggered in two situations — before Holleman’s trial and during his trial. The district court found that Holleman could not show cause and prejudice in either situation. Although it is a close question, we believe that Holleman could demonstrate cause for his failure to raise the judicial inquiry claim in his first petition. Unbeknownst to Holleman or to any of his appellate counsel (because it was not in the trial record), Judge Clement had asked Frank whether Frank would have a conflict of interest if he were appointed to represent Holleman. Holleman, 101 F.Supp.2d at 702. Frank had answered that he saw no conflict. Id. Had Holleman known of this inquiry, he likely would have raised a judicial inquiry claim (relating to what Judge Clement knew before trial) in his first petition. Further, if Holleman had known about the trial court’s inquiry, he likely would have brought a judicial inquiry claim based upon the trial court’s failure to make an inquiry when Frank developed an actual conflict of interest during the trial. However, Holleman cannot demonstrate prejudice because even if he had raised the judicial inquiry claim in his first petition, the claim would have failed because the trial court had no further duty to inquire either before or during Holleman’s trial. But cf. Mickens, — U.S. at -, 122 S.Ct. at 1244 (“[T]he rule applied when the trial judge is not aware of the conflict (and thus not obligated to inquire) is that prejudice will be presumed only if the conflict has significantly affected counsel’s performance.”).

Holleman argues that Judge Clement’s inquiry of Frank demonstrated that Judge Clement knew that there was a potential conflict of interest prior to trial (and thus had a duty to inquire into the conflict), or alternatively, Judge Clement should have become aware of the conflict during the trial. Although the circumstances are somewhat clouded, neither argument is compelling.

While “a possible conflict inheres in almost every instance of multiple representation,” multiple representation in itself does not violate the Sixth Amendment. Cuyler, 446 U.S. at 346, 100 S.Ct. 1708. There were no “special circumstances” in this case that indicated to Judge Clement that he should have conducted a more searching inquiry. Id. at 346-47, 100 S.Ct. 1708. First, no party objected to the multiple representation. Second, “the provision of separate trials for [the petitioner] and his codefendants significantly reduced the potential for a divergence in their interests.” Id. at 347, 100 S.Ct. 1708. Thus, Judge Clement did not have to conduct a more searching inquiry (although he was certainly not precluded from making such an inquiry). The fact that Judge Clement did inquire does not mean that Judge Clement knew of a potential conflict of interest. If there were an inference of a conflict of interest whenever a trial court initiates such an inquiry, this could discourage judges from making such inquiries. See Cuyler, 446 U.S. at 346 n. 10, 100 S.Ct. 1708 (stating that it was desirable to require trial courts to inquire into conflict of interest claims). Discouraging trial judges from making such inquiries is particularly indefensible in cases, such as the case before us, where the trial judge is the one appointing defense counsel. Cf. Mickens v. Taylor, — U.S. -, 122 S.Ct. 1237, 1251, 152 L.Ed.2d 291 (2002) (Stevens, J., dissenting) (arguing that the need for a thorough inquiry is greater when the trial judge appoints the lawyer).

Further, Judge Clement’s question to Frank could be considered an adequate inquiry into any potential conflict of interest. After Frank stated that he saw no conflict of interest, there was no other evidence of conflict for Judge Clement to pursue. Judge Clement could reasonably rely on Frank’s representation because (besides the presumption that attorneys make truthful representations to the court) the district court found that Frank reasonably believed that there was no conflict of interest. Holleman, 101 F.Supp.2d at 704-05. Frank had no reason to anticipate that the state would call Schaar as a prosecution witness in Holleman’s trial, a development that entangled Frank in a conflict. The finding about Frank’s reasonable belief is not clearly erroneous and is supported by the record. Thus, Judge Clement did not know, and could not have known, about a potential conflict of interest on the part of Frank prior to the trial. Therefore, the trial court did not have a duty to inquire, beyond the question that it posed to the lawyer it was appointing, into a conflict of interest before trial.

But should Judge Clement have known about the conflict during the trial? Holle-man argues that, since Judge Clement knew that Love had planned to present an alibi defense, when one of Love’s alibi witnesses was called in Holleman’s trial, Judge Clement should have known at that time that this would create a conflict between Frank’s obligation to Love and Frank’s obligation to Holleman. The district court, however, found that Judge Clement did not and could not realize the importance of Mary Schaar. Holleman, 101 F.Supp.2d at 705. This finding is not clearly erroneous, and is supported by the fact that Holleman’s own appellate counsel, Jeffery Evans (who was searching for ineffective assistance of counsel claims), could not find a conflict of interest claim based on trial developments when he examined the trial transcript. Thus, the trial judge did not have a duty to inquire into Frank’s conflict of interest during the trial because he did not know, nor could he reasonably know, that Frank had a conflict. Therefore, Holleman cannot show prejudice with respect to his judicial inquiry claim.

B.

Holleman’s attorney conflict claim — that Frank had an actual conflict of interest that adversely affected the outcome of the trial — also must be dismissed because Holleman cannot demonstrate cause for his failure to raise the claim in his first petition. To show cause, the petitioner must show that some “external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim.” McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). The district court found that there was no such external impediment that prevented Holleman from learning about Frank’s conflict of interest. Holleman, 101 F.Supp.2d at 706.

First, the district court found that Holleman had reason to inquire. Id. Further, the district court found that, although Frank was hard to locate when Evans became Holleman’s lawyer, “the record allows no inference that Mr. Frank would have been difficult to locate in 1980 or 1981.” Id. The district court also found that Frank would have revealed his conflict to Holleman if he had been asked. Id. It concluded that Frank’s instruction to Holleman not to write to Frank about theories for appeal was not “an external impediment preventing the inquiry from being made.” Id. Thus, Holleman could not establish cause. Id.

The district court’s finding that Holle-man had reason to inquire into the conflict apparently rests upon the fact that Holle-man was suspicious about Frank’s multiple representation. Holleman raised his suspicion with his appellate counsel as early as 1977, and continued to be suspicious throughout the state and federal appellate processes. Within months of his sentencing, Holleman wrote a letter to his appellate counsel, Dennis Kramer, saying that he thought there was something wrong in Frank’s having represented him after representing Love. Kramer wrote back that, “you [Holleman] believe your attorney, James Frank, was competent except for having represented Frank Love earlier.” Holleman’s suspicions were still alive ten years later when Holleman commented to Evans, his then appellate counsel, “You may want to look into this. This lawyer [Frank] that represented me also represented my co-defendant.”

Holleman’s suspicion would have been insufficient to itself form the basis for a conflict claim in Holleman’s first petition because, among other things, multiple representation is insufficient in itself to be a factual predicate for a conflict claim. Cuyler, 446 U.S. at 350, 100 S.Ct. 1708. But is Holleman’s suspicion sufficient to require him to initiate an inquiry? Or does Frank’s silence with respect to whether he had a conflict absolve Holle-man from conducting such an inquiry? What facts and circumstances must be present to require a petitioner to inquire into a specific basis for a claim, such as ineffective assistance of counsel (based on a conflict of interest)? Our principal difference with the dissent seems to revolve around this issue. Courts such as the Court of Appeals for the Fourth Circuit in Mickens v. Taylor, 240 F.3d 348 (4th Cir.2001), aff'd, — U.S. -, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), have apparently assumed that a petitioner has such a duty, but have provided little analysis of the question.

Mickens involved an attorney, Saunders, who had previously represented a juvenile that his present client, Mickens, was accused of killing. Mickens, 240 F.3d at 354. Saunders had not revealed his prior representation to Mickens. Id. Mickens did not raise a claim for ineffective assistance of counsel in his state habeas petition based upon the conflict. When he filed a petition for federal habeas relief based on the conflict, the district court held that Mickens could show cause to overcome his state procedural default because “Saunders’ silence and state law requirements for secrecy of juvenile court records operated together to preclude Mickens from raising the conflict of interest claims in his state habeas petition.” Id. at 356 (internal citation and quotation omitted) (emphases added). The implication from this statement seems to be that, if the only factor standing in the way of Mickens’ knowing about the conflict of interest was the silence of the conflicted attorney, Mickens would have had to make inquiry. The Court of Appeals for the Fourth Circuit agreed with the district court’s conclusion that “the factual predicate for [the conflicts claim] was not available to Mickens in state court nor was it discoverable through the exercise of diligent investigation.” Id. Mickens thus implies that, if an inquiry would have revealed the factual predicate for a claim and a petitioner has not made such an inquiry, the petitioner would not have been able to show cause. The juvenile confidentiality laws can be a factor in a petitioner’s showing cause only if the petitioner had a duty to inquire, but the confidentiality laws made such an inquiry futile. Thus, Mickens’s holding must be based upon a principle that the petitioner must inquire into the possibility of a conflict even if his attorney is silent.

Requiring Holleman to initiate an inquiry despite Frank’s silence may appear over-demanding, particularly since we have suggested that Judge Clement did not have to initiate an inquiry into a possible conflict of interest in the face of Frank’s silence. However, we must examine the facts carefully. Judge Clement did ask the same question of the counsel he was appointing (Frank) that we are requiring Holleman to ask (of Frank). Judge Clement was reassured by Frank’s response and did not pursue the matter further. Presumably, had Holleman received a similar response, cause would likely have been established.

In any event, before seeking to balance a trial court’s duty to inquire with a habe-as petitioner’s duty to inquire, we must compare the purposes underlying their respective inquiries into attorney conflicts. A trial court’s duty to inquire is geared toward the management of an ongoing trial and must be viewed in that context. The purpose of the trial judge’s inquiry is to ensure that the defendant is receiving a fair trial. If the trial judge is not put on notice that there is a potential conflict, he is under no duty to ferret out all the possible conflicts that might arise in a multiple representation situation. His obligation to inquire, however, may be more serious if he is the one appointing the lawyer in question to represent a criminal defendant.

In contrast, the petitioner’s duty to inquire into conflict claims is a duty to research historical facts that could form the basis for habeas claims. “[The][a]buse-of-the-writ doctrine examines petitioner’s conduct: The question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process. The requirement of cause in the abuse-of-the-writ context is based upon the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition.” McCleskey v. Zant, 499 U.S. 467, 498, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (internal citations omitted) (emphasis in original). The importance of the petitioner’s initiative is central to this formulation.²

Thus, 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, — U.S. at -, 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.

The extent of a petitioner’s required inquiry depends upon whether there are “external impediments, whether [they] be governmental interference or the reasonable unavailability of the factual basis for the claim, [that] prevent[] petitioner from raising the claim.” McCleskey, 499 U.S. at 493, 111 S.Ct. 1454. A petitioner could show cause if he could demonstrate either 'that an inquiry would have been futile because of an external impediment or that he had conducted a “reasonable and diligent investigation” in light of any external impediments. A petitioner could show that an inquiry would be futile if he would not have been able to discover the factual predicate for his conflict claim even if he had inquired. Cf. Mickens, 240 F.3d at 356 (holding that petitioner demonstrated cause because state juvenile confidentiality law prevented petitioner from discovering that his attorney had represented petitioner’s murder victim even if he had inquired). Alternatively, the petitioner could show that he had conducted “a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition,” McCleskey, 499 U.S. at 498, 111 S.Ct. 1454, if he had pursued all reasonable avenues of investigation. For example, if the petitioner had asked his attorney about conflicts of interest, and the attorney simply had said that he was under no conflict, this inaccurate response could constitute an external impediment to acquiring enough information to make a conflict claim.

Here, Holleman cannot show cause in either of the ways noted in the caselaw. 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.

Holleman also contends that an inquiry would have been futile despite the district court’s finding that Frank would have revealed his conflict to Holleman if Holleman asked him. Holleman argues that there is nothing in the record to suggest that Frank would have revealed his conflict of interest to Holleman (as opposed to Frank’s later revelation of the conflict to an attorney who confronted him face-to-face), but there is also nothing in the record that supports the opposite assumption — that Frank would not have disclosed the conflict. Where there is more than one reasonable interpretation from the facts (or absence of facts), we cannot say that the district court clearly erred in finding that Frank would have revealed his conflict of interest to Holleman.³ Further, as we have suggested, even if Frank had not revealed the conflict, Holleman could still show cause if Frank’s response constituted an external impediment to Holle-man’s acquiring sufficient information for a conflicts claim.⁴

An inquiry could also be futile if Frank could not be located (and that difficulty to locate Frank would constitute an external impediment). But the district court found that Frank “would [not] have been difficult to find in 1980 or 1981,” Holleman, 101 F.Supp.2d at 706. This finding was not clearly erroneous. Frank was a public defender in Lake County until he resigned in early 1979 or 1980. Telephonic Deposition of James Frank, p. 37, at 16-17. He continued practicing law in Lake County until around 1985 when his activities led to a twenty-three count indictment against him. Frank v. United States, 914 F.2d 828, 829 (7th Cir.1990).x

Thus, there was no cause for Holleman’s failure to include the attorney conflict claim in his first petition and Holleman cannot overcome the abuse-of-the-writ objection to his claim.

IV.

For the foregoing reasons, we AffiRM the judgment of the district court.

1 . The discussion in Holleman, 155 F.3d 906 (7th Cir.1998), is directed primarily to the question whether Holleman knew enough about the conflicts claims to have brought those claims in his first habeas petition, rather than entirely to the question whether he knew enough to have a duty of further inquiry. This may account for any apparent differences in evaluating some of the evidence between that opinion and this one. Also the present opinion speaks to the findings of a district judge after a full evidentiary hearing.

2 . The dissent makes much of our alleged assignment of a heavier obligation of inquiry to an uninstructed layman, Holleman, than to a trained jurist, Judge Clement. We cannot say which of these has the weightier duty — only that their respective duties arise in different contexts and with a different perspective on the surrounding facts and events. For example, Judge Clement may have a number of cases on trial with a retinue of witnesses and possibly more than one situation carrying within it the seeds of a conflict of interest. Holleman, on the other hand, has only his own case, in which he has an intense interest, to attend to, and this probably makes up in practical opportunity for scrutiny what he may lack in theoretical insight. It is really not unreasonable to impose on him some obligation of inquiry into matters that have aroused his suspicion.

3 . In contrast to the dissent, our reading of the evidence presented at the evidentiary hearing suggests that Frank would have revealed the factual predicate of the conflict claim to Holleman because Frank was (unreasonably) unaware that he was conflicted. Frank was convinced that Holleman was involved in the crime. Telephonic Deposition of James Frank (April 28, 2000), p. 38, at 15-17. Frank believed that a substantive defense was not available and would not have been sue-cessful. Id., p. 33, at 24-25. The reason for this was that Holleman had made incriminating statements to the police. Id., p. 34, at 2-3. Rather, Frank sought to win for Holleman based on a "form and procedure” defense. Id., p. 32, at 21-23. This defense was apparently to get Holleman's statements thrown out based upon constitutional violations. Further, Jeffery Evans testified that Frank was very cooperative and Frank spoke a great deal about the alibi defense of his prior client, Love. Deposition of Jeffery Evans (May 1, 2000), p. 46-47. It was difficult to get Frank to "look from the perspective of his subsequent client, Mr. Holleman.” Id. Evans also testified that he had to sit down with Frank with the notice of alibi in Love’s case and said, "look don’t you see a problem with this. And finally — I mean he would see the problem, he would acknowledge the conflict.” Id., p. 47, at 14-18. This evidence indicates that Frank would have revealed, if asked, his convictions about Holleman's culpability and his defense strategy, which he would not see as presenting conflicts a problem.

4 . The dissent, in attempting to lighten the burden on Holleman, emphasizes the derelictions of Frank and claims that Frank's breach of a fiduciary duty to disclose his conflicts relieves Holleman of any duty to inquire about them. The dissent urges reliance on Frank’s silence as an external impediment to knowledge of the conflict. But, no matter how censurable the conduct of Frank, this cannot free Holleman of his obligations when seeking habeas relief. To say that Frank's silence is an external impediment is to free Holleman of his well-recognized obligation to inquire. On the other hand, we have indicated that, if Holleman had made an inquiry, then Frank's silence might have constituted an external impediment.