Bergman

MEMORANDUM *

We review de novo the district court’s legal analysis and its grant of habeas relief. 1 Under Bonin v. Calderon, Bergman is only entitled to habeas relief for a violation of his Sixth Amendment right to counsel free from conflicts of interest if he can “show: (1) that counsel actively represented conflicting interests, and (2) that an *774 actual conflict of interest adversely affected his lawyer’s performance.”

As in Bonin, the facts of this case do not establish an actual conflict of interest. 3 The district court faulted Bergman’s lawyer for not getting an agreement in writing confirming Bergman’s potential release on bail and the return of $4,550 in exchange for his accompanying authorities on a trip to Lake Mead. But often an agreement binding on the government is not available. The lack of an explicit agreement was precisely why no actual conflict was found in Bonin. 4 Bergman’s lawyer only stood to receive $100 of the funds, had they been returned, as the rest of his fees were to be paid primarily from the deed to Bergman’s house, which is not to imply that a lawyer’s interest in getting paid establishes an actual conflict of interest with the client. A…

concurring.

BERZON, Circuit Judge.

I concur in the memorandum disposition. There is, however, an additional reason why I would deny the habeas petition. Even if there were an actual conflict of interest, this is not a case, I believe, to which the rule of Cuyler v. Sullivan, 446 U.S. 335 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980), would apply. Cuyler holds that the prejudice inquiry required under Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), for ineffective assistance claims is not necessary where there was an actual conflict between the trial lawyer and her client that affected the representation at trial. 446 U.S. at 349-50 , 100 S.Ct. 1708 (citing Holloway v. Arkansas, 435 U.S. 475, 487-91 , 98 S.Ct. 1173 , 55 L.Ed.2d 426 (1978)). The reason for this rule is that where one has a conflicted lawyer at trial, there is no sensible way to determine which decisions may *775 have been influenced by that conflict, and therefore no way to assess the prejudice due to the conflict. Id.

Here, the trial lawyer was not the attorney with the conflict. And we do know precisely the impact of any conflict on the trial — the prosecution obtained and used…