Lisa Joyce RUBIN, Petitioner-Appellee, v. Archie GEE, Director; J. Joseph Curran, Jr., Respondents-Appellants, 292 F.3d 396

Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge HOWARD joined. Judge DIANA GRIBBON MOTZ wrote a dissenting opinion. OPINION WILKINSON, Chief Judge. Lisa Joyce Rubin, a Maryland prisoner, claims she was denied the effective assistance of counsel and seeks federal habeas corpus relief. The district court granted a writ of habeas corpus, concluding that the state court’s decision not to grant Rubin a new trial was an objectively unreasonable application of clearly established federal law regarding Rubin’s right to conflict-free representation. See Cuyler v.

Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Because two of Rubin’s attorneys labored under a conflict of interest that adversely affected Rubin’s representation, and because Rubin was denied the assistance of counsel by these lawyers’ corruption of the attorney-client relationship from the night of Rubin’s crime until the conclusion of Rubin’s trial, we affirm the judgment of the district court. The case involved two attorneys who in the aftermath of a crime schooled their client in the tactics of evasion in order to guarantee their own fee.

Then to avoid criminal indictment and keep their conduct from coming to light, the attorneys took cover as part of the defense team. While the prosecution harped at trial on Rubin’s actions immediately following the crime, the attorneys could not be called as fact witnesses and their role in directing Rubin’s actions was never explained. To say this had an adverse impact on her trial is self-evident. To say the actions here tarnished the noble calling of criminal defense work is an understatement. I.

On November 11, 1990, Lisa Joyce Rubin was convicted of first degree murder and the use of a handgun in a crime of violence. She was sentenced to life in prison, with all but 30 years suspended, on the murder charge and a concurrent sentence of 20 years on the handgun charge. There is no question that Rubin shot and killed her husband, Timothy Warner. However, Rubin, the only defense witness called at trial, claimed she was acting in self-defense. A series of events ultimately led to the homicide. During her marriage to Warner, Rubin had an affair with William Glis-son.

Rubin and Warner ended up bringing a civil suit against Glisson because Glisson assaulted Rubin during the affair. In the course of the civil trial, Glisson was poisoned when he drank out of a soda bottle containing cyanide. After the civil proceeding against Glis-son, Rubin and Warner separated. Rubin subsequently hired private investigators, Robert Miller and Robert Leopold, to determine whether Warner was having an affair. In April 1990, Rubin told Miller that Warner confessed to her that he had poisoned Glisson.

Rubin claimed she was afraid of Warner and wanted to tell the police what she knew about the attempt on Glisson’s life. Miller referred Rubin to Darrel Longest, an attorney, so that Longest could arrange for Rubin to meet with the police. On April 20, 1990, after Longest secured immunity for Rubin, Rubin and Longest met with a police officer to tell him about Warner’s confession. Four days later, on April 24,1990, Rubin met Warner at a veterinary clinic to have their dog put to sleep.

During a walk with Warner in the woods behind the clinic, Rubin told Warner that she had gone to the authorities about his confession. According to Rubin, Warner was enraged and pulled out what she believed to be a gun. Rubin then took a handgun out of her purse and shot Warner eight times. After the shooting, Rubin proceeded back into the veterinary clinic and called Miller in an attempt to reach her attorney, Longest. Following Miller’s instructions, Rubin met him and the other private investigator, Leopold, at a neutral location. The three of them then returned to the scene of the crime.

Miller called Longest and his law partner, David Gavin, who both came to the crime scene. At that time, it became clear that Rubin had taken a lot of medication. So Longest told Miller and Leopold to take her to the hospital for a possible drug overdose. However, Longest went one step further. In an apparent effort to have Rubin evade detection, Longest instructed Miller and Leopold to have Rubin admitted to the hospital under a false name. The attorney’s instructions were meticulously executed. While Rubin was in the hospital, Longest notified the police that Warner was dead.

However, he never disclosed Rubin’s identity or whereabouts. With Rubin still at large, Longest and Gavin were able to direct her actions in order to ensure themselves ample compensation. The day after the shooting, attorney Gavin drove Rubin to the bank so she could withdraw the sum of $105,000 to cover Longest and Gavin’s retainer fee and expenses. Meanwhile, attorney Longest took possession of the evidence in the case. Longest took Rubin’s jacket, her purse, some .22 caliber bullets, and a .38 caliber handgun and kept them at his law offices.

Finally — only after the attorneys discovered that a warrant was out for Rubin’s arrest — Longest and Gavin turned Rubin in to the police at 7:00 p.m. on April 25th. Longest and Gavin continued to advise Rubin after the homicide. They recommended to Rubin who should serve as her trial counsel. They persuaded her to hire Barry Helfand, who in turn brought in Alan Goldstein and Fred Joseph. And remarkably, considering the post-shooting events, Longest and Gavin remained part of the defense team even after Helfand, Goldstein, and Joseph were brought into ' the case.

Longest and Gavin continued to collect a fee from Rubin, even though they did not sit at counsel table during her trial. Except for the fact that Rubin went to the hospital, none of the facts regarding the events following the homicide were brought out during Rubin’s direct examination. And Longest and Gavin were not called to testify about their roles in directing Rubin’s actions in the immediate aftermath of the shooting. However, the State brought out the events from the twenty-four hours following the homicide during Rubin’s cross-examination, without any mention of Longest and Gavin’s activities.

The State used the facts to refute Rubin’s self-defense claim by arguing that she had fled the scene of the crime, lied about her identity, and showed consciousness of guilt. Following her conviction, the Maryland Court of Appeals granted certiorari and affirmed Rubin’s conviction. See Rubin v. State, 325 Md. 552, 602 A.2d 677 (1992). On September 29, 1995, Rubin filed a petition for post-conviction relief in the Circuit Court for Montgomery County.

Following an evidentiary hearing, the post-conviction court granted Rubin’s petition for a new trial, finding a conflict of interest between Rubin and defense attorneys Longest and Gavin that violated Rubin’s Sixth Amendment right to counsel. On appeal by the State of Maryland, the Court of Special Appeals reversed in an unreported decision. The Court of Special Appeals did not dispute the post-conviction court’s factual findings regarding Longest and Gavin’s actions after the homicide. And the court found that Longest and Gavin “served as counsel on behalf of Mrs. Rubin” up to and throughout her trial.

However, the state court found that after the events following the homicide, Longest and Gavin’s contribution to the defense team “consisted of what is most accurately described as ‘paralegal/investigative’ work ... and ‘client relations’ that had nothing to do with trial strategy.” Therefore, the Court of Special Appeals held that because Longest and Gavin did not control the decision of whether to offer their testimony at trial, and because it was a reasonable decision by Rubin’s trial counsel not to call them, Longest and Gavin’s “failure or refusal” to testify did not constitute ineffective assistance of counsel.

The Maryland Court of Appeals denied Rubin’s application for certiorari. See Rubin v. State, 351 Md. 663, 719 A.2d 1262 (1998). Having exhausted her state remedies, Rubin filed a petition for habeas corpus relief in the district court. On February 7, 2001, the district court granted Rubin’s petition, finding that the Maryland Court of Special Appeals unreasonably applied the clearly established Supreme Court precedent of Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

The district court held that it was objectively unreasonable for the state court to conclude that Rubin was not' denied the effective assistance of counsel by Longest and Gavin’s conflict of interest during the pretrial and trial phases of Rubin’s case. See Rubin v. Gee, 128 F.Supp.2d 848, 865-69 (D.Md.2001). The court stressed that it was unreasonable for the state court to conclude that “counsel as deeply conflicted as Longest and Gavin were could remain active in [her] • case.” Rubin, 128 F.Supp.2d at 869.

Alternatively, the district court concluded that the state court’s finding that Longest and Gavin piayed only a “paralegal/investigative role” on Rubin’s defense team was an unreasonable determination of the facts in light of the evidence presented in the state court, constituting another basis for granting Rubin habeas relief. The court noted that the evidence included a detailed letter from Longest and Gavin to the, Maryland Attorney Grievance Commission explaining that “Longest and Gavin served Rubin in a ‘multitude of ways ... even during the trial.’ ” Id. at 856-58, 869-70.

The district court concluded that the state court’s “minimization of counsel’s role was clearly and convincingly unreasonable in fight of this evidence.” Id. at 870. Maryland now appeals. II. A. ■Rubin filed her petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), so we apply 28 U.S.C. § 2254 as amended by the AEDPA. Rubin’s claims were adjudicated on the merits in state court.

Therefore, in order for federal habeas relief to be granted, the state court’s decision must be “contrary to, or involve! ] 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). The Supreme Court addressed the meaning of § 2254(d)(1) in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The Court explained several ways in which a state court decision can be “contrary to” or an “un-reasonable application of’ clearly established federal law. See Williams, 529 U.S. at 405-07, 120 S.Ct. 1495.

Only one of the Court’s explanations is relevant in this case: A state court decision is an unreasonable apphcation of clearly estabhshed federal law “if the state court identifies the correct governing legal rule from [the] Court’s cases but unreasonably apphes it to the facts of the particular state prisoner’s case.” Id. at 407, 120 S.Ct. 1495. “Stated simply, a federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s apphcation of clearly estabhshed federal law was objectively unreasonable.” Id. at 409, 120 S.Ct. 1495.

The Court has stressed that “an unreasonable apphcation of federal law is different from an incorrect apphcation of federal law.” Id. at 410, 120 S.Ct. 1495. A federal court may not grant habeas relief “simply because [the] court concludes in its independent judgment that the relevant state-court decision applied clearly estabhshed federal law erroneously or incorrectly.” Id. at 411, 120 S.Ct. 1495; see also Bell v. Jarvis, 286 F.3d 149, 160-63 (4th Cir.2000) (en banc).

We must determine here whether the state court’s legal conclusion that Rubin received effective assistance of counsel was an objectively unreasonable apphcation of clearly estab-hshed federal law to the facts of Rubin’s case. See Sullivan, 446 U.S. at 341-42, 100 S.Ct. 1708 (conflict of interest determination is a mixed question of law and fact, requiring the “apphcation of legal principles to the historical facts”). B. . It is clearly estabhshed federal law that the Sixth Amendment “right to counsel is the right to the effective assistance of counsel.” Strickland v.

Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (internal quotations' omitted). Further, it is clearly estabhshed that the right to effective assistance includes the right to representation free from conflicts of interest. Sullivan, 446 U.S. at 348-50, 100 S.Ct. 1708; see also Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981); Holloway v. Arkansas, 435 U.S. 475, 489-90, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Glasser v. United States, 315 U.S. 60, 70, 76, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

Lawyers owe their clients a duty of loyalty, including the duty to avoid conflicts of interest. And the Supreme Court has emphasized that the duty of loyalty is “perhaps the most basic of counsel’s duties.” Strickland, 466 U.S. at 692, 104 S.Ct. 2052. In order to establish ineffective assistance of counsel in a conflict of interest situation, a defendant who did not raise an objection at trial “must demonstrate that an actual conflict of interest adversely ' affected his lawyer’s performance.” Sullivan, 446 U.S. at 348, 100 S.Ct. 1708.

Adverse effect cannot be presumed from the mere existence of a conflict of interest. See Mickens v. Taylor, 122 S.Ct. 1237, 1243-45, 152 L.Ed.2d 291 (2002). The Supreme Court has explained that Sullivan does not require “inquiry into actual conflict as something separate and apart from adverse effect.” Id. at 1244 n. 5. Rather, “[a]n ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel’s performance.” Id.

However, if a defendant shows that a conflict of interest existed and that it ■ adversely affected counsel’s performance, prejudice will be presumed and the defendant need not demonstrate a reasonable probability that, but for the attorney’s conflict of interest, the trial’s outcome would have been different. Sullivan, 446 U.S. at 349-50, 100 S.Ct. 1708; see also Mickens, 122 S.Ct. at 1244-45; Glasser, 315 U.S. at 76, 62 S.Ct. 457.

This presumption of prejudice arises because “it is difficult to measure the precise effect on the defense” when representation is “corrupted by conflicting interests.” Strickland, 466 U.S. at 692, 104 S.Ct. 2052; see also Holloway, 435 U.S. at 490-91, 98 S.Ct. 1173. When lawyers’ conflicts of interest adversely affect their performance, it calls into question the reliability of the proceeding and represents a breakdown in the adversarial process fundamental to our system of justice. III. In Rubin’s case, the Maryland Court of Special Appeals identified Cuyler v.

Sullivan as the clearly established federal law governing Rubin’s claim of ineffective assistance of counsel due to a conflict of interest. The state court also recognized that a conflict of interest can exist between a client and her attorneys’ own personal interests and that both pretrial and trial representation can be ineffective. See, e.g., United States v. Magini, 973 F.2d 261, 263-64 (4th Cir.1992); United States v. Tatum, 943 F.2d 370, 376 (4th Cir.1991).

However, the court, did not conclude that Longest and Gavin’s actions following the homicide created an actual conflict of interest that deprived Rubin of effective assistance. And the court did not consider the continuing effects of Longest and Gavin’s conflict when evaluating the effectiveness of Rubin’s trial representation. This was an “objectively unreasonable” application of clearly established federal law because Longest and Gavin plainly had a conflict of interest that adversely affected their own performance and the performance of Rubin’s trial counsel.

Therefore, under Sullivan, Rubin was denied the effective assistance of counsel by Longest and Gavin’s actual conflict of interest. Indeed, statutory terms of art fail to fully capture the appalling nature of the attorneys’ misconduct here and the effect it had on Rubin’s subsequent trial. What transpired requires us to take the rare and extraordinary step of granting Rubin the writ of habeas corpus under the rigorous standards of § 2254. A.

Longest and Gavin’s personal interests fundamentally conflicted with the objectives of Rubin’s representation from the moment they arrived at the scene of the crime until the completion of her trial. The state post-conviction court made numerous factual findings regarding Longest and Gavin’s actions on the night of the homicide that gave rise to their conflict of interest. And, as the district court correctly emphasized, the Court of Special Appeals “left wholly intact” these findings of the post-conviction court. Rubin, 128 F.Supp.2d at 865.

In fact, the state court did not focus on or dispute the fact that Longest and Gavin had a conflict of interest. And nothing in the record suggests that Rubin waived or even understood the conflict of interest that Longest and Gavin’s representation had created. See Rubin, 128 F.Supp.2d at 866-67. The Court of Special Appeals found that after arriving at the scene of the crime, “Longest told Miller and Leopold to take [Rubin] to a hospital for a possible drug overdose and have her admitted under’ a false name.” The private investigators carefully followed Longest’s instructions.

Rubin left the crime scene and Miller and Leopold registered her under the alias of “Sharon Peterson” at the hospital. Then, “Longest notified the police that Warner was dead, but did not disclose [Rubin’s] identity” and did not even notify the police that he and Gavin represented Rubin. In addition, Longest and Gavin removed evidence from the crime scene. -The state court found that “Longest took possession” of Rubin’s property, including her “jacket, a purse, .22 caliber bullets and a .38 caliber Smith and Wesson handgun.” Longest and Gavin kept these items at their own law offices.

On the day following the homicide, Longest and Gavin failed to present Rubin to the police. Instead, concerned solely with their own financial gain, “Gavin drove [Rubin] to her bank to withdraw $105,000 to be used as [Longest and Gavin’s] retainer fee and to cover [their] expenses.” Finally, only after they discovered that a warrant was out for Rubin’s arrest, Longest and Gavin turned Rubin in to the police almost twenty-four hours after they had arrived on the scene of the crime. It can hardly be disputed that Longest and Gavin’s conduct created a conflict of interest.

Rubin’s .lawyers .utterly failed to function as .Rubin’s advocates. Instead, they schooled Rubin, Miller, and Leopold in evasive action and functioned almost as accessories after the fact. The lawyers’ desire to secure a $105,000 retainer fee “caused them to counsel Rubin to act in an unnecessarily suspicious fashion when they caused her to delay her surrender to the police for 24 hours.” Rubin, 128 F.Supp.2d at 865-66. Her attorneys’ pretrial conduct created serious problems for Rubin at trial.

Rubin’s lawyers had instructed her to take the precise actions that were subsequently used by the prosecution at trial to establish her premeditation and consciousness of guilt. For example, the prosecutor seized on Rubin’s conduct during closing argument, saying, inter alia: “Does she flee from this scene? You bet. - Does she he? You bet.” Rubin, 128 F.Supp.2d at 852. Rubin thus had a strong interest in having Longest and Gavin help the jury understand that she acted on the advice of her own lawyers following the homicide.

The very attorneys who were supposed to function in a representative capacity had become critical fact witnesses regarding the crime scene and Rubin’s conduct. Testimony from either of the attorneys at trial might have helped explain Rubin’s behavior to the jury. Testimony, however, was apparently the last thing Longest and Gavin had in mind. They had a powerful conflicting interest in shielding themselves from testifying to 'conceal their role in the events following the homicide. Longest and Gavin did not-r-indeed could not — fulfill their obligations to vigorously protect their client’s interests.

The state post-conviction court made undisputed findings that Longest and Gavin’s actions had exposed them to potential criminal charges for obstruction of justice and hindering the apprehension of a criminal defendant. In fact, Longest and Gavin were the subject of a grand jury investigation that began before Rubin’s trial and continued until after it was complete. Longest even had to engage his own attorney to represent him in this investigation.

See Rubin, 128 F.Supp.2d at 859-61, 865 (recounting Longest’s post-conviction testimony and his attorney’s testimony regarding the criminal investigation of Longest and Gavin). Furthermore, Longest and Gavin were also the targets of an inquiry by the Maryland Attorney Grievance Commission during which they had to justify the $150,000 fee they eventually collected for representing Rubin. See id. at 856-58 (recounting details from the post-conviction hearing involving Longest and Gavin’s letter to the grievance commission justifying their fee). The Court of Special Appeals did not dispute these facts.

And, in its reply brief, the State acknowledged the investigations of Longest and Gavin and conceded that Longest and Gavin’s activities on the night of .the homicide and the next day “were fraught with both ethical and criminal overtones.” At all times, the attorneys’ fidelity to their own interests superseded any sense of obligation they may have had to their client. B.

Instead of disputing that Longest and Gavin had a conflict of interest, the Court of Special Appeals concluded that any conflict Longest and Gavin had did not adversely affect Rubin’s representation because Longest and Gavin advised Rubin to retain three independent attorneys to represent her at trial.

In order to show an adverse effect from an attorney’s conflict of interest, the defendant must establish by a preponderance of the evidence that a plausible alternative defense strategy existed ■ “that [her] defense counsel might have pursued,” that this “alternative strategy or tactic was objectively reasonable under the facts of the case known to the attorney at the time of the attorney’s tactical decision,” and that “the defense counsel’s failure to pursue that strategy or tactic was linked to the actual conflict.” Mickens v.

Taylor, 240 F.3d 348, 361 (4th Cir.2001) (en banc), aff'd, — U.S. -, 122 S.Ct. 1237, 152 L.Ed.2d 291.

In its decision, the state court found that Longest and Gavin did not control Rubin’s trial strategy and held “as a matter of law that, unless counsel could have prevented the happening of the [allegedly] deficient act, he or she cannot have rendered ineffective assistance.” The court concluded that because Longest and Gavin did not have the right to insist on testifying, “their failure or refusal to do so did not constitute ineffective assistance of counsel.” This was an objectively unreasonable application of Sullivan because Longest and Gavin’s conflict of interest adversely affected Rubin’s representation in at least two ways. 1.

First, Longest and Gavin’s direct representation of Rubin was adversely affected by their conflict of interest. While the state court found that Longest and Gavin “were not responsible for deciding upon or for carrying out Mrs. Rubin’s trial strategy,” it also found that Longest and Gavin continued to serve “as counsel on behalf of Mrs. Rubin” from the night of the homicide until the end of her trial. They participated on her defense team.

In the letter they sent to the Maryland Attorney Grievance Commission, Longest and Gavin indicated that they spent “by far” the most time with Rubin in the events leading up to her trial. Rubin, 128 F.Supp.2d at 856. And at the end of the day, Longest and Gavin collected $150,000 for their representation of Rubin while Helfand, Gold-stein, and Joseph collected only $100,000. Id. at 866.

Longest and Gavin’s continued participation on Rubin’s case, even after Hel-fand, Goldstein, and Joseph were brought in to serve as trial counsel, allowed them to wrap themselves in the attorney-client privilege and assure that they would not be asked to testify at trial. The defense team called Rubin to the stand as their sole witness, but never mentioned' the role her attorneys played in directing her behavior following the homicide. This “virtually sealed off access to any testimony from [Longest and Gavin]” regarding their role. Rubin, 128 F.Supp.2d at 866.

It allowed the prosecution to cross-examine Rubin about her conduct. And the State used those facts to establish Rubin’s premeditation and her consciousness of guilt. The only issues at Rubin’s trial were premeditation and deliberation, not whether Rubin committed the homicide. The actions Longest and Gavin instructed Rubin to take made the shooting “look more pre-meditated and more deliberate.” Rubin, 128 F.Supp.2d at 869. Yet Longest and Gavin never considered “re-mov[ing] themselves from the case altogether so that they might become witnesses on her behalf.

They never thought to draw the State’s attention to their own actions regarding the handling of evidence' at the crime scene or in causing the 24 hour delay in Rubin’s surrender.” Id. The Supreme Court has observed that a conflict of interest has detrimental effects on representation “because of what it tends to prevent the attorney from doing.” Holloway, 435 U.S. at 489-90, 98 S.Ct. 1173. An adverse effect can be shown from an attorney’s “failure to take actions that are clearly suggested from the circumstances.” Tatum, 943 F.2d at 376.

Here, the circumstances suggested that Rubin might have been helped by Longest and Gavin testifying. Rubin has shown that this was a plausible alternative dé-fense strategy which was reasonable under the facts of the case and that the failure to pursue this strategy was linked to Longest and Gavin’s conflict of interest.

We agree with the district court that “[b]y failing to draw the spotlight on their own actions, whether for financial reasons (to remain in the case and gain a substantial fee) or out of fear for their own' criminal liability, [Longest and Gavin] lapsed in their duty of representation.” Rubin, 128 F.Supp.2d at 869. 2. Second, Longest and Gavin’s conflict of interest ultimately tainted and adversely affected Rubin’s representation by her three trial attorneys. Longest and Gavin violated the most basic principles of the attorney-client compact from the beginning to the end of Rubin’s representation.

The taint from their conflict of interest could not be cleansed simply by bringing in independent counsel to make trial decisions while Longest and Gavin continued to function as members of the defense team. The Court of Special Appeals’ conclusion that attorneys as conflicted as Longest and Gavin could somehow remain active in Rubin’s case as long as they did not control trial strategy was an ■objectively unreasonable application of the Sullivan standard. We do not call into question the state court’s factual finding that Rubin’s trial lawyers made the decision to not call Longest and Gavin as witnesses.

However, the alternative decision was effectively unavailable to them. To discharge Longest and Gavin from the defense team and call them as witnesses, Helfand, Goldstein, and Joseph would have had to oust fellow members of the bar who had.been the ones to recommend their services in the first place. They could hardly consider the benefits of calling Longest and Gavin as fact witnesses while Longest and Gavin .were still functioning as Rubin’s attorneys. This adversely affected Rubin’s representation.

This court, applying Sullivan, has previously held that a conflicted attorney can taint trial counsel and render trial counsel’s performance ineffective. In Tatum— a case that amazingly involved the very same David Gavin whose conduct is at issue in this case — this court concluded that bringing in independent trial counsel does not necessarily cleanse a serious conflict of interest if the conflicted attorney continues as a member of the defense team. Tatum, 943 F.2d at 378-79. “The present case replays Tatum almost exactly.” Rubin, 128 F.Supp.2d at 869.

Tatum suggests that it is almost Longest and Gavin’s modus operandi to represent people in a questionable capacity pretrial and then remain as a shadow team at trial after bringing trial counsel “up to speed.” See Rubin, 128 F.Supp.2d at 868. As in Rubin’s case, Gavin was a potential fact witness , for Tatum because Gavin’s firm had apparently advised Tatum to do what he was being prosecuted for. Tatum, 943 F.2d at 373-74, 376-77. Instead of withdrawing from the case, Gavin continued to represent Tatum, thus attempting to deflect attention from his own actions and his firm’s behavior. Id. at 377, 379.

The State argued, just as it does in Rubin’s case, that there was no ineffective assistance of counsel because Gavin did not represent Tatum at trial. Id. at 377-78. This court rejected that argument, finding that it would never occur to Tatum’s trial counsel to call Gavin as a witness with Gavin continuing to serve as co-counsel. Even though Gavin and Tatum’s trial counsel made contributions to Tatum’s defense that “varied in function and degree,” the “joint effort by the two, when one was so completely disqualified, caused an unwitting, but disqualifying^ taint to the other.” Id. at 378.

Just as in Tatum, Rubin’s trial counsel’s performance was tainted by the fact that Longest and Gavin continued to participate as members of the defense team. C. ■ The adverse effect Longest and Gavin’s conflict of interest had on their own representation of Rubin and the taint the conflict had on Rubin’s trial counsel establishes ineffective assistance of counsel under Sullivan. The State argues that Helfand, Goldstein, and Joseph’s strategic decision to not call Longest and Gavin to the stand was reasonable and did not prejudice Rubin.

The State asserts that Longest and Gavin’s testimony might actually have' harmed Rubin’s defense by, inter alia, allowing the prosecution to delve into the attempted poisoning of Rubin’s former lover, Glisson, and into the fact that Rubin had sought immunity in association with that poisoning. These arguments are unavailing. With the conflict of interest established and the adverse effect on her representation shown, Rubin has carried her burden under Sullivan, 446 U.S. at 349-60, 100 S.Ct. 1708.

Longest and Gavin’s representation of Rubin was more than ineffective — it was a perversion of the attorney-client relationship. Longest and Gavin’s conflict of interest was so severe that it led to a corruption of the adversarial process that our system relies on to produce just results. It is hard to imagine a case that would call the fundamental fairness of a trial into more question than this one. What happened here should never happen in our system. Rubin is entitled to a new trial with conflict-free representation. IV.

For the foregoing reasons, we affirm the judgment of the district court and grant Rubin’s petition for a writ of habeas corpus on the same terms ordered by the district court. AFFIRMED. . Pursuant to § 2254, a writ of habeas corpus may also be granted if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 XJ.S.C. § 2254(d)(2). The district court relied on this provision as an alternative basis for granting habeas relief to Rubin. See Rubin, 128 F.Supp.2d at 869-70.

Because we con-elude that the state court's decision was an unreasonable application of federal law under § 2254(d)(1), this ends our inquiry. There is no need to call the state court's factual findings into question. . While the Supreme Court has expressed doubt about whether Sullivan applies to ev- ' ery potential conflict of interest, see Mickens, 122 S.Ct. at 1245-46, the Court has never indicated that Sullivan would not apply to a conflict as severe as the one presented here.

Therefore, we conclude that the state court correctly utilized the Sullivan framework when analyzing Rubin’s ineffective assistance of counsel claim. . Of course, in keeping with the requirements of Bell v. Jarvis, 236 F.3d at 162, the case on which this court has plainly relied is Cuyler v. Sullivan. The use of Tatum is purely illustrative. •