Full opinion text
HATCHETT, Chief Judge: Appellant-petitioner John Freund appeals the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 1985, a Florida state court jury convicted Freund of first-degree murder for the 1984 stabbing death of Ralph Walker. The crux of Freund’s petition was that he was deprived of his right under the Sixth and Fourteenth Amendments to effective assistance of trial counsel because his lawyers labored under significant conflicts of interest that stemmed primarily from their prior representation of Freund’s non-testifying, separately-tried codefendant, John Trent. Addressing first impression issues concerning the applicable rules of law and standard of review, and finding no actual conflict and no adverse effect, we affirm. I.HISTORICAL FACTS A. Background on the Six Persons Present at the Murder Scene 1. John Freund Before 1983, John Freund practiced oncology, the treatment of cancer, in Palm Beach, Florida. He enjoyed an excellent reputation in the medical community for both his professional expertise and personal demeanor. Unknown to most of his colleagues, Freund suffered from severe bouts of depression. In June 1983, he attempted suicide at home, injecting himself with large doses of narcotics. A police officer found him unconscious, and subsequent psychological tests and CAT scans of his brain indicated significant brain damage due to a lack of oxygen. Among Freund’s symptoms were impaired memory, reduced intelligence, inappropriate behavior, poor judgment, lack of foresight and planning, amenability to others’ influences, and a reduced ability to reason and appreciate the consequences of his actions. Consequently, health care officials suspended, and never reinstated, Freund’s hospital privileges. 2. John Trent Before the suicide attempt, Freund befriended John Trent, the son of one of his patients. Although Freund and Trent’s friendship soured at some point, they rekindled it after Freund’s suicide attempt. Trent promised to help Freund regain his hospital privileges. Trent enjoyed a reputation of wielding significant, though illicit, influence in the Palm Beach community. Trent owned a legitimate interior design business called House of Draperies, but his main occupation was a full-time criminal. He involved himself heavily in drugs (both use and sale), violence and prostitution. When tenants of his several rental properties failed to pay their rent on time, Trent had them assaulted. Trent kept more than one residence (and girlfriend) in the Palm Beach area. Around the time of the murder, he lived in an apartment at the Palm Beach Hotel. Although the building had a doorper-son, front desk attendants and security guards, Trent usually answered his door waving a loaded .45 caliber pistol. When friends visited, he often had them use cocaine with him immediately before they did anything else. Trent claimed to have ties with the local police through his work as a confidential informant. He bragged that he had the West Palm Beach Police Department and Palm Beach County Sheriffs Office “in his back pocket.” He wielded significant influence over several other persons, using them to further his drug dealings, work as prostitutes, entertain him, “take out” those who gave him trouble and perform various other tasks. Four such persons were at Trent’s apartment,-along with Freund, on the night of the murder: three testified at Freund’s trial and the fourth was the victim. 3.Eleanor Mills The first of these persons was Eleanor Mills. Mills ran a female escort service and frequently used drugs. In early 1984, an undercover police officer arrested her after she attempted to sell him a kilogram of cocaine. While in pretrial detention, Mills met someone who suggested that Trent, then a stranger to Mills, could help her with the drug charges. In April 1984, several weeks before the murder, the court released Mills on bail, and she arranged to meet Trent at his apartment. In his usual practice, Trent greeted Mills with a gun in hand and they immediately consumed cocaine. Impressing Mills with his power in the community, Trent offered help in at least two ways. First, he referred Mills to the law firm (Foley, Colton and Duncan, P.A.) that represented him. Second, he discussed having her serve as an informant with the local police. 4.Lisa Angelilli Mills’s daughter, Lisa Angelilli, also testified at Freund’s trial. At the time that Mills and Trent became associated, Angelilli was sixteen years old. Like her mother, she frequently used drugs. Mills told Angelilli about Trent. She anxiously awaited the opportunity to meet and use drugs with a man of his influence. 5.Bill Daniell Bill Daniell was the third material witness at Freund’s trial. An ex-convict, Daniell worked at House of Draperies as an electrician and performed several “odd jobs” for Trent, including drug trafficking. He had known Trent for over thirteen years, and Trent often introduced him as his bodyguard and “hit man.” 6.Ralph Walker Finally, Ralph Walker was the stabbing victim. Walker performed various tasks for Trent. He obtained drugs for Trent, collected rent on various properties that Trent owned and assaulted whomever Trent wanted harmed. Like Trent, Walker had a violent temperament. B. The Murder 1. Preceding Events Most of the events surrounding the murder of Walker occurred at Trent’s Palm Beach Hotel apartment. Sometime in the afternoon or early evening of Tuesday, July 24, 1984, Mills and Angelilli arrived at Trent’s apartment. Trent had invited Mills and Angelilli to come over so that he could use cocaine with them and meet Angelilli. Of course, Trent answered the door with his .45 pistol in hand. The entrance to the apartment was through the bedroom. A hallway led from the bedroom to a dining room and living room area (the “main room”) that the kitchen adjoined. In the main room, they spent the next several hours consuming cocaine. Trent also drank bourbon. He remained armed with the .45 in a shoulder holster; a .357 magnum pistol also lay on the table where they sat. Later in the evening, Angelilli announced that she wanted marijuana. Eager to impress Angelilli, Trent called Walker and told him to bring marijuana to the apartment. About thirty minutes later, Walker arrived. The party continued: all four snorted cocaine; Angelilli and Walker smoked marijuana; Trent drank bourbon; and Walker drank tequila. Walker drank and snorted more than the others. At some point, Trent and Walker started to discuss past exploits. Trent and Walker became increasingly loud. The escalating level of tension made Mills very nervous. Between 10 p.m. and 11 p.m. that night, Walker whispered to Angelilli that he wanted to have sex with her. When she ignored him, he got upset, jumped around and yelled obscenities at her. Mills implored Trent to calm Walker down, but Trent assured her that Walker was just “playing around.” Walker, however, became more enraged. He retrieved an aluminum baseball bat from Trent’s bedroom and slammed it onto the table. Walker announced to everyone that he was going to have sex with Angelilli, and that Trent would just have to ignore it. Walker then picked up the .357 magnum from the table and moved toward Angelilli with the gun in one hand and the bat in the other. Angelilli and Mills became frightened and tried to hide behind Trent. Trent knocked the .357 magnum out of Walker’s hand. When Walker reached for the .45 in Trent’s shoulder holster, Trent pulled it out first and fired it toward Walker. Walker dived over a couch. The bullet hit a dining room chair, but missed Walker. Trent walked around the couch, pointed the gun at Walker’s head and threatened to kill Walker. Keeping the .45 pointed at Walker, Trent instructed Mills to get a pair of handcuffs out of his kitchen closet. As Mills retrieved the handcuffs, she noticed that the closet contained guns, knives and pills. Trent instructed Mills to hold the gun while he handcuffed Walker’s hands behind his back. Trent then told Angelilli to bring him the Gerber fighting knife from the closet. With the knife in one hand and gun in the other, Trent proceeded to kick Walker, lunge at (but not stab) him with the knife and repeatedly yell threats, including “You’re dead Ralph Walker! You’re dead ... and you’re goin’ home to your mama in a box.” He also gagged Walker with a towel and strapped duct tape around Walker’s mouth. At this point, Freund entered the picture. Trent called Freund, Daniell and Bruce Fullerton, another one of his henchmen, for assistance. Trent asked Freund to come over with his “little black bag” to sedate Walker. Trent told Daniell to come over and bring his “piece.” He instructed Fullerton to bring a steamer trunk, a sledge hammer and a chain saw. Freund and Daniell followed Trent’s instructions, but Fullerton ignored them. Freund arrived first, about fifteen minutes after the phone call. To sedate (but not kill) Walker as Trent ordered, Freund injected Walker with magnesium sulfate from his bag. Daniell arrived shortly after Freund, while Freund was still injecting Walker. When Daniell got close to Walker, he heard him mumble through the duet tape, “Don’t let them kill me.” After multiple injections, Freund ran out of magnesium sulfate. Walker was still conscious. Trent found some diazepam in his kitchen closet. He gave it to Freund along with a bottle of vodka. Freund crushed the pills into a powder that he dissolved in the vodka. Freund, Trent and Daniell all took turns injecting Walker with the mixture. After an injection, Walker would lose consciousness for a short time. When he revived, they would inject him again. These gruesome events overcame Mills and Angelilli, who retreated from the main room to Trent’s bedroom. They could still hear Walker groaning in agony, and they begged Trent to let them leave. Trent refused, but he and a hotel doorman escorted them to another apartment within the hotel. Approximately twenty minutes later, when Mills and Angelilli returned, Trent told Mills, “We had to take him out. He knows too much and we had to run an air bubble to his vein.” Freund and Trent had indeed injected air into Walker, but it did not kill him. Freund expressed his surprise to Daniell and Trent that the air injections had not caused an embolism. After watching Freund and Trent repeatedly pull the plunger all the way out of a syringe stuck in Walker’s arm and pop the plunger back in to the hilt, Daniell decided that he could not watch anymore and joined the women in the bedroom. Freund stayed in the main room with Walker, while Trent split time between the main room and the bedroom. 2. The Stabbing From the bedroom, Daniell saw Freund pick up Trent’s Gerber fighting knife as if “he had found a new toy” and walk in the direction of Walker. Trent entered the bedroom. Daniell asked him what Freund was doing, and Trent replied that Freund “was probably fucking Ralph in the ass.” At one point, Angelilli walked to the bathroom. On her way, she could see into the main room. Although she could not see Walker because he was on the floor behind the couch, she could see Freund. Freund had the knife in his hand. He was laughing and making up-and-down stabbing motions behind the couch. Although Angelilli apparently could not see where the knife landed, she was positive that Freund was stabbing Walker. Horrified, Angelilli ran into the bathroom and vomited before returning to the bedroom. Shortly thereafter, when Trent, Daniell, Mills and Angelilli were in the bedroom, Freund walked into the room with blood on his shirt and said, “It’s over.” Trent told Freund that he could not leave wearing the bloody shirt and instructed him to change into one of Trent’s shirts. After washing his hands and putting on a clean shirt, Freund started to leave. Freund warned Mills and Angelilli that they had not seen him that night. On his way out the door, he told Trent, “It was a pleasure doing business with you. Call me again.” He telephoned about twenty minutes later to inform Trent that he had arrived home safely. Trent let Mills and Angelilli go home. Daniell stayed with Trent through the next morning. At one point, Daniell saw Walker’s body in the living room in a pool of blood. 3. Disposing of Walker’s Body The next day, Wednesday, Daniell drove Trent to House of Draperies to pick up Trent’s van. They drove the van to the Palm Beach Hotel to retrieve Walker’s bicycle that he had left in front of the building. After unloading the bicycle at House of Draperies, Trent and Daniell drove to the apartment of one of Trent’s girlfriends. They made arrangements for the girlfriend and Fullerton to purchase a steamer trunk that they would use to remove Walker’s body from Trent’s apartment. Later that day, Mills picked Trent up from House of Draperies and drove him to the Palm Beach Hotel apartment. Fullerton soon joined them, and the three began to clean up the apartment. They, however, left Walker’s body on the floor behind the couch. Trent and Fullerton discussed removing the body in a steamer trunk. Freund arrived at the apartment around 2 a.m. Thursday morning. Trent, Freund and Mills sat around the dining room table snorting cocaine, drinking and talking for several hours. They discussed how to dispose of Walker’s body. During the entire night, Freund acted oblivious to Walker’s corpse that sprawled close to the dining room table. Freund left the apartment sometime early Thursday morning. The body remained in Trent’s main room throughout much of Thursday. During this time, Trent threatened to kill Mills and An-gelilli if they said anything to the police. He also reminded them that he had the local police under his control. Similarly, Trent threatened to kill Daniell’s family if he did not help Trent conceal the body. At one point, Trent told Angelilli that Walker had deserved to die because he knew too much. Late Thursday afternoon, after Freund and his friends left the apartment, Fullerton arrived with a sledgehammer and a steamer trunk that he had purchased with Trent’s girlfriend. Trent used the sledgehammer to break Walker’s legs so that his body would fit in the trunk. Once Trent closed Walker’s body in the trunk, Trent, Fullerton, Mills and another friend of Trent carried it to Trent’s van and drove to House of Draperies. C. Police Investigation 1. Mills’s and Angelilli’s Cooperation and the Police’s Searches The morning of Saturday, July 28, 1984, Mills and Angelilli decided to call the police. They related the events surrounding the stabbing and told the police where to find Walker’s body. They did not tell the police about Daniell’s involvement. Later that day, the police discovered Walker’s body in Trent’s van at House of Draperies, beginning their investigation. Also, based on Mills’s and Angelilli’s statements, the police obtained and executed search warrants for House of Draperies and Trent’s Palm Beach Hotel apartment. At House of Draperies, the police found: Walker’s badly decomposed body in the steamer trunk in Trent’s van; boxes of empty beer cans and liquor bottles; trash bags containing syringes, needle wrappers, empty drug capsules and four empty ampules of magnesium sulfate. They also discovered Trent’s and Fullerton’s fingerprints on the van. At Trent’s apartment, the police found: duet tape; a loaded .45 pistol in a shoulder holster; a loaded .357 magnum pistol; a pair of handcuffs; bottles of diazepam that Freund had prescribed for Trent; a sledgehammer; a dented aluminum baseball bat; a dining room chair with a bullet lodged in it; a Gerber fighting knife with human blood on the blade; a bag of blood-soaked towels; and an empty beer can with Mills’s fingerprints. 2. Autopsy Shortly after the searches, the coroner performed an autopsy on Walker’s body. The coroner found five stab wounds straight into Walker’s chest and one into his lower back that extended upward and inward toward the heart. The coroner concluded that these stab wounds penetrated Walker’s heart and, therefore, caused his death. The coroner also noticed handcuff injuries to Walker’s wrists and duet tape over his mouth. Walker’s body fluids revealed high levels of cocaine, alcohol and a derivative of diazepam. The corner did not find any needle marks, but advanced decomposition in one area suggested that Walker may have received multiple injections. 3. Trent’s Flight and Daniell’s Cooperation After the police discovered Walker’s body, Trent fled to Illinois. Daniell eventually approached the police about his involvement and- corroborated Mills and Angelilli’s story. In addition to the physical evidence found at Trent’s apartment and House of Draperies, the police had three material witnesses willing to testify about Walker’s murder. The State Attorney’s Office did not charge Mills, Angelilli or Daniell with any crime resulting from their involvement in the murder or disposition of Walker’s corpse. D. The Law Firm For thirteen years, Trent had extensive dealings with the law firm of Foley, Colton and Duncan, P.A. (the “law firm”) — the law firm that would eventually represent Freund at trial. In the early 1970s, Robert Foley began representing Trent in various criminal and civil matters, as did Roger Colton and Douglas Duncan after they joined the law firm. Overall, until May 1984, the law firm represented Trent in various cases and capacities ranging from civil collection actions involving House of Draperies and Trent’s hotels to criminal matters. Additionally, during this time, the law firm and Trent’s relationship often exceeded that of attorney and client. Trent and his employees came to the office on a daily basis, sharing the law firm’s copier and other office equipment. Trent also performed interior design work for the law firm, Foley, Colton, and Duncan’s parents. Trent referred many of his employees and friends, including Mills, to the law firm! Approximately two months before the stabbing, Mills met with Colton at Trent’s Palm Beach Hotel apartment for less than an hour and explained to him the facts and circumstances of her cocaine trafficking charge. Colton and Mills discussed the possibility of her providing assistance to the police. Colton and Mills’s professional relationship began and ended with this meeting. The law firm represented Trent until May-1984, approximately three months before the stabbing. A year earlier, on June 19, 1983, Trent allegedly brandished a gun on a public street and threatened to kill two persons. The alleged facts were that Trent was speeding recklessly through a residential area and screeched to a halt. A woman with the last name of Vana came out of her apartment fearing that Trent had struck a neighborhood child. Vana asked Trent why he was driving like that and told him that small children played in the area. Trent told her to mind her own business or she would get hurt. When Vana’s husband approached, Trent pulled out a handgun from a holster in his waistband and asked her if she “wanted this one or the other,” motioning to a gun that he supposedly had in his back waistband area. A few days later, advised of the assault incident, the police stopped Trent in his car. The officers discovered diazepam in Trent’s possession. The police arrested Trent for, and the State Attorney’s Office charged him with, possession of diazepam and aggravated assault. The State also initiated a forfeiture proceeding against Trent’s automobile in relation to the possession charge. The law firm, primarily Colton, initially represented Trent in both the aggravated assault and diazepam possession prosecutions, but it withdrew as counsel no later than May 2, 1984, prior to their resolutions. The Honorable Marvin Mounts, Palm Beach County Circuit Judge, presided over these prosecutions. Colton and Duncan also represented Trent in the forfeiture proceeding, also before Judge Mounts, through final judgment that issued prior to May 1984. Although Trent had retained David Roth as substitute defense counsel in his aggravated assault and diazepam possession eases, he called Colton from Illinois after the stabbing for advice. Trent did not discuss the facts of the murder, and Colton offered no advice other than suggesting that Trent was in a lot of trouble and he should surrender to the authorities. Roth continued to represent Trent throughout his murder trial. Freund went to the law firm for advice soon after the stabbing. At that first meeting, Freund confessed to Foley that he stabbed Walker to death. The law firm agreed to defend him, and Freund surrendered to the authorities on July 31, 1984. Ten days after Freund’s arrest, authorities arrested Trent in Illinois. The court detained Trent and Freund without bail, and on August 23, 1984, a grand jury indicted both for the first-degree murder of Walker. E. Prosecution of Freund and Trent 1. Press Conference Two or three days after the court arraigned Freund, Foley called a press conference to announce that Freund would rely on an insanity defense. Formally, however, the law firm did not file a notice of intent to rely on the insanity defense until nearly a year later, June 4, 1985. By that time, Freund had admitted not only to Foley, but also to Duncan that he killed Walker. Freund had also told his psychiatrist that he stabbed Walker because Trent told him to do it. 2. Discovery and Freund’s Motion to Sever The clerk of court assigned Trent and Freund’s murder case to Judge Mounts, the same judge who had earlier presided over Trent’s assault, drug possession and forfeiture proceedings. After several hearings to determine Freund’s competency to stand trial, Judge Mounts declared him competent on February 5, 1985. Soon thereafter, two conflict-of-interest issues arose during pretrial proceedings. The first conflict issue arose at a deposition on April 16, 1985. Mills refused to answer any questions that Duncan asked on the ground that her prior consultation with Colton regarding the cocaine trafficking charge had established an attorney-client relationship with the law firm. Mills, however, had already disclosed, to Trent’s lawyer, Roth, in Duncan’s presence any information that she had conveyed to Colton during that consultation. Nevertheless, Mills remained silent. The second conflict issue arose less than a month later. On May 13, 1985, the law firm filed a motion to sever on behalf of Freund, asking the district court to order the State Attorney’s Office to prosecute Freund and Trent in separate trials. As grounds, the law firm averred that [tjhere exists a concern that because DR. FREUND’s attorneys have represented MR. TRENT in the past and on unrelated matters to the instant case, that there may be a potential conflict. Specifically, if in a joint trial, MR. TRENT[ ] was to testify in his own behalf, his former attorneys would be in a position of cross-examining him.... [A] severance should be granted ... to avoid even the remotest scintilla of an appearance of impropriety. This is not to say that an appearance of impropriety exists. The law firm concluded the motion with a statement that it was requesting an informal written opinion addressing the possible conflict from the Florida Bar. Although Judge Mounts eventually severed Freund’s and Trent’s trials, the record does not disclose whether he ever issued a ruling on this (Freund’s) motion. 3. Florida Bar Opinion Duncan wrote the letter to the Florida Bar on the same day that the law firm filed the motion to sever. After providing a factual background, Duncan asked two related questions about the law firm’s prior representation of Trent. First, Duncan essentially conceded that the law firm would have to withdraw from representing Freund if the court tried Freund and Trent jointly: [Tjhere may an appearance of impropriety under [Florida’s rules of professional conduct] in being up against a former client. Specifically, if in a joint trial, Mr. Trent elects to testify on his own behalf, ... his former attorneys[ j would clearly be put in a position of cross-examining him_ [Ijt may in the eyes of some raise the appearance of impropriety. But because he believed that severance was “likely,” Duncan asked whether ... there are any ethical problems in arguing in defense of Dr. Freund that at the time of the alleged homicide he was obviously insane, and this insanity was known by Mr. Trent, and accordingly Mr. Trent manipulated Dr. Freund to commit the murder for he, Trent. Simply stated, is there anything ethically wrong with arguing in a separate trial, that a former client [Trentj is responsible for a homicide as opposed to the new client [Freundj. As to Mills’s refusal to answer questions that the law firm posed on behalf of Freund, Duncan inquired whether “there [is] anything by virtue of the one initial consultation with Ms. Mills, that would preclude my law firm from examining and' questioning Ms. Mills concerning her knowledge of the homicide[.]” Duncan received an advisory staff opinion from the Bar on May 31, 1985 (the “Bar opinion”). Regarding the law firm’s prior representation of Trent, although the Bar opinion did not offer a direct answer to either question that Duncan advanced, it did outline some relevant considerations: [W]here the matter [for which the attorney represented the former client] is so unrelated, as to either substance or time, that the attorney could not have acquired information [from] the former client which could be used to his detriment, the attorney may ethically undertake representation adverse to his former client. If such related information was acquired during the course of former representation, [the rules of professional conduct] would prohibit the proposed representation even if a severance of the former and present clients’ cases were granted. Therefore the responsibility of the former client in the present case could only be argued where no detrimental information was obtained in the previous distant or unrelated representation. As to whether the law firm could question Mills about the homicide, the Bar opinion suggested that it could as long as its questioning did not reveal any secrets or confidences between the law firm and Mills. As it did with Trent, the Bar opinion cautioned that if Mills’s consultation with the law firm was either close in time or related to the homicide, the law firm could not ethically question Mills concerning the homicide. On June 3, 1985, relying on the Bar opinion, Duncan moved the court to order Mills to submit to the law firm’s deposition. Duncan assured Judge Mounts that the law firm would “maintain the confidences and secrets that may have been disclosed by Ms. Mills to Mr. Colton during their initial consultation on the unrelated criminal charge.” He went on to state that because the murder occurred after the consultation, the law firm’s prior relationship with her would not prohibit it from questioning Mills about her “observations and opinions concerning the alleged homicide.” Mills submitted to the law firm’s deposition on June 24,1985. 4. Severance Hearing While Freund’s motion to sever was still pending, on August 20, 1985, Trent filed his own motion to sever on two different grounds. Through discovery, Trent’s lawyer, Roth, learned that Freund had confessed to his psychiatrist that although Freund stabbed Walker, Trent made him do it. Thus, the first ground of Trent’s motion was that if Freund chose not to testify, the admission in a joint trial of Freund’s out-of-court confession that inculpated Trent would violate Trent’s rights under the Sixth Amendment’s Confrontation Clause. See Bruton v. United States, 391 U.S. 123, 135-36, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Judge Mounts ruled that to avoid a Bruton problem, he would simply exclude this statement if Freund and Trent were tried jointly. Trent’s second ground for severance involved the law firm’s relationship with him. Trent alleged that the law firm had acquired confidential information that it could use against him at a joint trial. Despite his own pending motion to sever, Freund initially joined the State in opposing Trent’s requested severance. Judge Mounts conducted a hearing on Trent’s severance motion on September 3, 1985. The court opened the hearing to the public, and it drew significant media attention. The first witness that Roth called to the stand was Trent. Trent initially detailed the attorney-client relationship that had developed between the law firm and himself. Trent testified that during the course of the representation, he had confided his personal secrets and business affairs to both Foley and Colton. Trent told the law firm about his participation in multiple criminal activities involving drugs and prostitution. Even after Trent had retained Roth to handle his drug and assault prosecutions, he called Col-ton from Illinois after the stabbing. Trent explained that at the time of the telephone call, he still considered Colton to be his attorney. Trent’s testimony then moved from his professional relationship with the law firm to a more personal and lurid relationship. He had considered Foley and Colton to be close friends in addition to his lawyers. Beyond discussing his criminal activities, Trent would recount to both lawyers the details of his sexual exploits. Trent even showed Foley and Colton a number of “sexual devices,” including whips, chains and handcuffs, at his Palm Beach Hotel apartment. Trent also contended that he used cocaine in Foley’s and Colton’s presence, including in their law offices. According to Trent, Foley and Colton did more than just listen to Trent’s tales of deviancy. Trent made several serious allegations against both lawyers. First, he claimed to have delivered cocaine to their friends, sometimes at the law firm. He further suggested that he had provided both lawyers with prostitutes on many occasions, often as payment for legal services. Indeed, Trent allegedly provided Foley with “so many [prostitutes] over the years ... it [was] almost a daily occurrence.” He alleged that the two attorneys had attended and participated in many of his “sex parties” involving cocaine and prostitutes. For example, on one occasion, Trent and Foley allegedly invited several prostitutes to the offices after the close of business. One of them accidentally tripped the police-monitored burglar alarm. When the police arrived, Trent recounted that he had to answer the door because Foley was naked. After Trent concluded his testimony, Roth called Colton to the stand. Colton “categorically^]” “unequivocally and totally” denied “each and every accusation” that Trent had levied. To avoid being forced off of the case, Foley did not cross-examine Colton or testify. Although both Duncan and the assistant state attorney declined to examine Colton, the court did question him, eliciting that Colton was an upstanding member of the Florida Bar, enjoyed a solid reputation for fairness and professionalism, and had served on several bar committees involving issues ranging from legal ethics to judicial appointments. During arguments that followed the conclusion of testimony, Duncan announced that Freund was joining Trent’s request for a severance. Duncan’s reason for changing his mind was not Trent’s inflammatory allegations against the law firm. Rather, Duncan feared that the court’s exclusion of Freund’s out-of-court confession to his psychiatrist in a joint trial would completely gut the law firm’s theory of the case, that is, that Trent controlled Freund and ordered him to kill Walker. Roth’s only problem with a joint trial, in contrast, was the law firm’s cross-examination of its former client “if and when Trent takes the stand.” Ultimately, Judge Mounts granted the severance. 5. Trent’s Trial The court tried Trent first. Duncan attended the trial and observed the testimony of Mills, Angelilli and Daniell, the three principal fact witnesses for the State. Neither Freund nor Trent testified. The trial resulted in a hung jury, and the court declared a mistrial. In a plea bargain, the State Attorney’s Office reduced the first degree murder charge in exchange for Trent’s pleading guilty to second-degree murder. The court sentenced Trent to a 17-year sentence, and prison authorities have since released him. 6. Freund’s Trial After Trent pleaded guilty to second-degree murder, the State Attorney’s Office offered the same deal to Freund. The law firm advised Freund that the defense of insanity was successful 30 percent or less of the time. Rejecting the offer on behalf of Freund, Foley stated to the assistant state attorney that the defense was holding out for a verdict of manslaughter or not guilty by reason of insanity. Thus, the State brought Freund to trial on October 23, 1985, and Duncan and Foley served as his trial lawyers. i. State’s Case-in-Chief The State first introduced most of the physical evidence through the testimony of various police officers who conducted the investigation. The prosecution also presented the results of Walker’s autopsy through the testimony of the conducting pathologist. He confirmed that although Walker’s body fluids revealed high levels of cocaine; alcohol and a derivative of diazepam, stabbing caused Walker’s death. Through the testimony of Mills, Angelilli and Daniell, the State presented the details of the murder. With only minor inconsistencies, the three witnesses essentially recounted the events leading up to and following Walker’s stabbing as described in section I, part B, of this opinion. They all testified that Freund was present at Trent’s apartment the night of the murder and that, at Trent’s direction, he injected Walker first with magnesium sulfate, then with mixtures of vodka and diazepam, and finally with air. Angelilli testified that Freund made stabbing motions in the direction of Walker’s body. Because Walker’s body was behind a couch, Angelilli conceded that she did not see the knife actually strike Walker’s body. Daniell testified that he saw Freund pick up Trent’s knife and approach Walker. All three witnesses testified that Freund was alone in the main room with Walker for a short time, and that afterward he came into the bedroom with blood on his shirt. After describing their roles in cleaning up and moving Walker’s body, the witnesses each concluded their direct testimony through recounting how and why they went to the police. Duncan brought out many of the inconsistencies of each witness’s testimony on cross-examination. For example, he elicited from both Mills and Angelilli that when they originally went to the police, they omitted altogether any mention of Daniell. Mills and Angelilli explained that they were afraid to inculpate him because they thought he was a hit man who would kill them. Only after Daniell went to the police did Mills and An-gelilli acknowledge his presence at the murder scene. While cross-examining Mills, Duncan asked a series of questions about how she came to know Trent and about her prior arrest for trafficking cocaine. Duncan had her recount the basic background of that pending charge and Trent’s assistance from shortly after her arrest until her one and only meeting with Colton. Duncan stopped short of asking Mills about her consultation with Colton. Mills also admitted that she, like everyone else except Freund, used cocaine on the night of the stabbing. On cross-examination of each of the three witnesses, Duncan elicited personal facts in an effort to impeach their credibility. For instance, he questioned Mills about “Port 0 Call for Men,” the escort service she ran. Similarly, when cross-examining Angelilli, Duncan elicited that just prior to the trial, she had worked as a topless dancer. And, Daniell admitted on cross-examination that he was an ex-felon and attested that he “would never go back to prison except on a slab.” ii. Freund’s Insanity Defense After the prosecution rested its case, Duncan and Foley presented Freund’s insanity defense. Through the testimony of several witnesses, they demonstrated that Freund had a good reputation as an oncologist before his suicide attempt. They developed the facts surrounding the suicide attempt, focusing on the changes in Freund’s personality that brain damage had caused. Colleagues of Freund testified that he seemed to be a different person with severe memory problems. The defense also presented the testimony of several experts who explained the symptoms of brain damage, including susceptibility to suggestion and a lack of independent judgment. Many of these experts had evaluated Freund shortly after his suicide attempt to determine whether or not he was fit to return to the practice of medicine. During its cross-examination of Freund’s witnesses and through the testimony of the witnesses it called on rebuttal, the prosecution attempted to demonstrate that Freund knew what he was doing when he stabbed Walker and knew that it was wrong. When cross-examining one of the psychiatrists who Foley called, the State elicited that Freund had told the psychiatrist that he remembered the events of the night of the murder. Specifically, the jury heard the psychiatrist confirm that Freund had admitted to remembering the following: Trent called him to come over and kill Walker. When he arrived at Trent’s apartment, Walker was lying on the floor in handcuffs. He injected Walker with diazepam knowing that it would not kill Walker. He stabbed Walker several times with a letter opener. He did not know Walker’s identity when he stabbed him. He first stabbed Walker in the back, but then turned him over to stab him in the heart because, as a doctor, he knew that was the way “to really kill a person that is in handcuffs.” Neither Duncan nor Foley objected to this line of questioning. Judge Mounts did instruct the jury, on more than one occasion, that Freund’s statements to psychiatrists may be treated “as evidence of mental condition only and not as evidence of the factual truth” that they may contain. Freund did not testify. iii. State’s Rebuttal The prosecution called its own expert witness on rebuttal, a psychiatrist who the court had appointed to determine Freund’s competency to stand trial. This psychiatrist opined that. Freund was feigning most of his mental problems. He claimed that although the stabbing may have been the result of an “irresistible impulse,” Freund definitely knew that he was killing Walker and knew that what he was doing was wrong. The witness also commented on the reports that psychiatrists who had examined Freund to determine his competency to reten to the medical practice had prepared. He interpreted those reports as indicating that Freund’s condition was improving and that Freund might have been able to return to the practice of medicine. He suggested that the psychiatrists who testified on Freund’s behalf exaggerated his condition to support the insanity defense. The last witness that the State called on rebuttal, and the last witness of the entire trial, was James Stob, a friend of Freund. Stob testified that Freund denied killing Walker when Stob visited him on jail. At no time did the State call Trent to testify. iv. Closing Arguments The closing arguments focused on Freund’s insanity at the time of the stabbing. The assistant state attorney argued that Freund knew exactly what he was doing and that he falsely tried to convince his psychiatrists that he was insane. Duncan focused on Freund’s brain damage and the supporting testimony of psychiatrists, arguing that Freund either did not know what he was doing when he stabbed Walker or, if he did know what he was doing, did not know that it was wrong. Duncan asserted that two victims existed in the case, Walker and Freund. He argued that Trent knew that Freund’s condition left him susceptible to influence and that Trent accordingly manipulated and controlled Freund like a robot, making him kill Walker. At one point, Duncan turned the argument over to Foley. After contending that reasonable doubt existed as to Freund’s sanity, Foley argued to the jury that Trent ordered Freund to do something. He did it, and because of the stressful situation, Ralph Walker is dead. We don’t really know who did it. I always wondered whether Trent did it and told this poor guy, “You did it. My colleagues here are telling you you did it.” The same girls were lying when they told the police they didn’t even tell them about Daniell in the sworn statement. The woman is going to get fifteen years mandatory without parole lifted for her if she cooperates, but she lies, she is in trouble and she lied about Daniell and Daniell got the word and he figured he better get in on the train also so he runs down to the police station Tuesday, I think it was, after the murder, and gives his statement and they say okay. Remember, he lied about that so we don’t know what happened there. We can’t guess what happened. We can’t guess this man into the electric chair and we can’t guess him into 25 years in the penitentiary without parole. Foley then returned to the insanity defense. In the State’s final closing argument, in addition to refuting the insanity defense, it addressed Foley’s statements: “Now, Mr. Foley tells you we are not even sure if Freund stabbed Walker. That’s ridiculous.” v. Verdict and Sentence After receiving their instructions from Judge Mounts, the jury deliberated for a total of three hours over two days. On November 1, 1985, the jury returned a verdict of guilty of murder in the first degree. At a subsequent penalty phase, the jury recommended a life sentence through a vote of ten to two. Judge Mounts accepted the recommendation and sentenced Freund to life in prison without the possibility of parole for twenty-five years, the minimum sentence that Freund could receive. F. Direct Appeal The law firm represented Freund on direct appeal. On grounds unrelated to this appeal, both the Fourth District Court of Appeal and the Supreme Court of Florida affirmed Freund’s conviction. See Freund v. State, 506 So.2d 437 (Fla.App. 4 Dist.1987) (per curiam), aff'd, 520 So.2d 556 (Fla.1988). II. COLLATERAL REVIEW PROCEEDINGS A. State Court After his direct appeal failed, Freund obtained new counsel — the same lawyers who represent Freund before us — to attack collaterally his conviction in state and federal court. On March 29, 1990, Freund filed a motion to vacate the judgment and sentence, pursuant to Florida Rule of Criminal Procedure 3.850 (the “3.850 motion”), in the state circuit court that tried and sentenced him. Freund argued that the law firm’s conflicts of interest denied Freund his constitutional right to the effective assistance of trial counsel. As sources of the conflicts, Freund pointed to the law firm’s relationship with Trent and Mills. The court conducted an evidentiary hearing on April 25, 1991 (the “3.850 hearing”). 1. Trent’s Private Investigator In Ms case-in-chief, Freund’s counsel called two witnesses to the stand. The first witness was Thomas Dick. Dick was an auxiliary patrolman for the Riviera Beach Police Department and a friend of Trent. Dick testified that Trent asked him to investigate the background of Vana, the alleged victim of Trent’s 1983 aggravated assault charge. Dick denied ever conducting any investigation, but admitted to obtaining the police report and meeting -with Trent and Colton separately to discuss the case. Neither Trent nor Colton asked Dick to do any investigative work with respect to the diazepam possession charge. Moving to the events following the stabbing, Dick testified that he learned that Trent was a fugitive in the murder investigation and that Freund had surrendered. Dan-iell went to see Dick shortly thereafter. Darnell told Dick that “he was [at Trent’s apartment] when whatever happened happened.” Dick convinced Daniell to turn himself in to the Palm Beach Police Department. At some point, while Trent was still in Illinois, Dick permitted the police to record calls made to Dick’s residence. The police recorded several conversations between Dick and Trent over the next few days. These recorded conversations that Freund played at the 3.850 hearing confirmed that Trent had contacted Colton following the stabbing. Trent also told Dick that he would arrange for Colton to pay Dick to do some investigatory work. Trent suggested that Colton possessed Trent’s power of attorney over some of his assets. After the tapes concluded, Dick testified that he had met with Colton following the calls from Trent. At that meeting, Colton denied to Dick that he enjoyed power of attorney over any of Trent’s assets. Dick testified that although he assumed without doubt that Colton represented Trent in late July and August 1984, Colton never told him that he represented Trent. Dick last spoke with Trent on August 8, 1984, just prior to his arrest in Illinois. 2. Duncan Duncan was the second witness that Freund’s counsel called at the 3.850 hearing. With regard to the law firm’s representation of Trent prior to May 1984, Duncan testified that although Colton handled most of that work, he did appear with Colton at Trent’s forfeiture hearing before Judge Mounts. Duncan denied that the law firm simultaneously represented Trent and Freund. When asked about his reaction to Trent’s allegations at the severance hearing, Duncan admitted that he was appalled and that the law firm was generally angry. The bulk of Duncan’s testimony, however, dealt with the law firm’s representation of Freund. Duncan and Foley served as Freund’s principal lawyers. In preparation for . Freund’s defense, Duncan observed Trent’s trial. He stated that Trent’s only defense was that he did not commit the murder. Duncan did not consider this defense to be completely consistent with the law firm’s theory of the case that Trent, knowing of Freund’s organic brain damage, orchestrated and manipulated Freund into stabbing Walker. Duncan testified that, in his view, insanity was the only viable and plausible defense available to Freund. According to Duncan, the experts who testified on Freund’s behalf were “some of the best and well known in their field.” Additionally, the battery of psychiatric tests conducted after Freund’s suicide attempt provided documented proof that his organic brain damage existed well before Walker’s death. Finally, Duncan pointed out that Freund confessed to committing the stabbing to Foley at their first meeting and made similar confessions four or five months later to both Ms psychiatrist and Duncan. Duncan conceded that the State’s physical evidence (e.g., the apartment, knife, handcuffs, gun, baseball bat, steamer trunk and location of the body) inculpated Trent, not Freund. He further conceded that the coroner did not discover any magnesium sulfate (one of the drugs that Freund injected into Walker) in Walker’s body at the autopsy, and that the police never found Freund’s bloody shirt or the doctor’s bag that he brought to Trent’s apartment. When asked whether the State’s three fact witnesses — Mills, Angelilli and Daniell — lacked credibility because of their admitted drug use and fear of Trent, Duncan testified that even under rigorous examination at Trent’s trial they would not “back off what they claim they saw.” This included Angelilli’s testimony that she saw Freund making stabbing motions with Trent’s knife in Walker’s direction — testimony that directly implicated Freund. Duncan disagreed with Freund’s lawyer’s suggestion that the law firm did not seek to shift the blame for the murder to Trent. He argued that although Freund’s plea of insanity necessarily implied that Freund killed Walker, it was premised on Trent’s taking advantage of Freund’s known mental condition that rendered him a “robot” to Trent’s unlawful commands. Duncan pointed to his cross-examinations of Mills, Angelilli and Daniell, where he sought to elicit facts about Trent’s ability to control not only Freund, but also others. Finally, when asked if Foley’s statement during closing argument that Trent might have committed the murder hurt Freund’s insanity defense, Duncan admitted that he was shocked when Foley made the statement and that it “sure didn’t help” Freund’s case. Duncan testified that he later asked Foley why he made the statement. Foley answered that he did it to “appease” Freund’s mother. 3. Colton After Freund presented Dick’s and Duncan’s testimony, the State called Colton to the stand as its first witness. Colton discussed the law firm’s prior legal representation of Trent, focusing on the 1983 diazepam possession and aggravated assault charges. Colton corroborated Dick’s account of Trent’s requested investigation of the alleged assault victim. Colton emphasized that Trent substituted Roth for the law firm in May 1984 and asserted that Trent sought no further legal advice from the law firm about any matter after that date. Colton also corroborated Dick’s account of Dick’s and Trent’s contact with Colton following the stabbing. Colton testified that he never told Dick that he was Trent’s lawyer. Rather, according to him, Colton “suggest[ed] strenuously” that Dick not get involved with Trent and that if Trent called Dick again, Dick should try to talk him into surrendering. Colton further testified that he told Trent that “his only alternative was to turn himself in, that [Colton] didn’t represent him and [Colton] did not have an attorney-client relationship with him.” Colton denied that he discussed the facts of the murder with Trent. At most, according to Colton, Trent may have said something to the effect of “I didn’t do it,” to which Colton replied, “you’d better turn yourself in.” Col-ton also flatly denied the allegations that Trent had raised at the severance hearing. When asked about the relationship between the law firm’s representation of Trent and Freund, the State and Colton engaged in the following dialogue: Q Okay. Was the representation of John Trent, your prior representation of him in any way connected with the facts of the homicide? A No. Q Did the facts of those cases have any bearing on the allegations of what had taken place on July 24th at the time of this murder? A I don’t know what you mean. Q I mean was there any connection brought in to the court that somehow the murder was related to him being charged with the aggravated assault in 1983 or related to him being charged with guns in 1983? A No ma’am. With regard to Mills, Colton admitted that he had “consulted” her about the cocaine trafficking charge. According to Colton, he discussed the possibility that she would provide substantial assistance to the Palm Beach County Sheriffs Office. He insisted that the meeting with Mills was brief and that after he quoted her a fee, he never saw her again in an official capacity. Colton’s testimony drew to a conclusion with the State’s last question on direct examination. Freund’s lawyer elected not to cross-examine Colton. 4.Assistant State Attorney The prosecutor from Freund’s trial also briefly testified at the 3.850 hearing as the State’s second and final witness. The prosecutor recalled the letter that he received from Foley on October 3, 1985, wherein Foley indicated that the law firm believed it had “a unique, valid insanity defense and ... a chance at getting a manslaughter jury verdict.” Also, in the prosecutor’s opinion, the law firm vigorously defended Freund at trial. 5.Expert Witness The hearing ended with the rebuttal testimony of an expert in criminal defense law. He opined that the law firm’s representation of Freund fell below the constitutional standard of effective representation because it presented conflicts of interest with the law firm’s prior representations of Trent and Mills. The State’s cross-examination of Tar-koff revealed that Tarkoff was not a board certified criminal lawyer, had never discussed with the law firm the scope and nature of its prior representation of Trent, and had never talked to Trent. 6.Court’s Order In a written order, the court denied Freund’s 3.850 motion. The court stated, in pertinent part: From a consideration of the evidence presented the Court finds that no conflict existed at any time. Mr. Foley ... is accused by [Freund] of having represented [Trent] at the same time. The Court finds that allegation to be unfounded and that at no time did Mr. Foley represent ... Trent during the time that he represented [Freund]. Additionally, Mr. Foley’s prior representation of ... Trent was in matters unrelated to this case. Florida’s Fourth District Court of Appeal affirmed the circuit court’s judgment without opinion, and the Supreme Court of Florida declined to exercise its appellate jurisdiction. B. Federal District Court On April 16, 1993, Freund filed the instant petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Southern District of Florida. Consistent with his 3.850 motion, Freund alleged that the law firm’s conflicts of interest denied Freund the effective assistance of trial counsel. For the first time, however, Freund alleged facts about Trent’s aggravated assault and diazepam possession charges. A magistrate judge reviewed the record and issued a report and recommendation. He stated, in pertinent part, that: (1) “the record supports the [state] court’s finding that the law firm’s representation, of Trent ended prior to [its] representation of [Freund]”; (2) Freund “presented no evidence establishing that the law firm ever simultaneously represented both [Freund] and ... Mills”; (3) Freund “failed to show ‘inconsistent interests’ by failing to demonstrate that the firm’s prior' representation of' Trent or [Mills] was substantially related to the firm’s representation of [Freund] or that the firm learned of relevant confidential information from these alleged prior representations”; and (4) the law firm’s adoption of the insanity defense did not evince an actual conflict of interest stemming from Trent’s allegations against the law firm at the severance hearing because an alternative defensive theory that “Trent ... inflicted the fatal wounds” was “not realistic in view of the uncontradicted testimony of the eyewitnesses.” On November 1, 1993, the district court overruled Freund’s objections, adopted the report and recommendation and denied Freund’s petition. III. ISSUE The encompassing issue that we discuss is whether the district court erred in concluding that Freund was not denied effective assistance of counsel because of the law firm’s conflicts of interests arising from: (1) its prior representation of Trent; (2) its prior representation of Mills; and (3) Trent’s severance hearing testimony that two partners of the law firm, Colton and Foley, engaged in embarrassing and illegal conduct. IV. DISCUSSION The Sixth Amendment to the United States Constitution, as incorporated through the Fourteenth Amendment’s Due Process Clause, guarantees that persons accused of state crimes “shall enjoy the right ... to have the Assistance of Counsel for [their] defense.” U.S. Const. amend. VI; Gideon v. Wainwright, 372 U.S. 335, 342-43, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). This right, of course, includes the one presently at issue, the effective assistance of trial counsel. Under the familiar test set forth in Strickland v. Washington, to establish that trial counsel ineffectively assisted the defense, a habeas corpus petitioner proceeding under 28 U.S.C. § 2254 must show that (1) the lawyer’s representation fell below an objective standard of reasonableness that (2) prejudiced the defense, that is, provided a reasonable probability that but for such deficient performance, the verdict would have been different. 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A. Rules of Law The crux of Freund’s ineffective assistance claim is that his trial lawyers, the law firm of Foley, Colton and Duncan, P.A., labored under conflicts of interest. The first issue that brought this case en banc concerns the rules of law that apply in conflict cases involving successive, as opposed to simultaneous, representations. In Cuyler v. Sullivan, a case involving simultaneous representations, the Supreme Court held that “[i]n order to demonstrate a violation of his Sixth Amendment rights, [the petitioner] must establish that [1] an actual conflict of interest [2] adversely affected his lawyer’s performance.” 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Although both Freund and the State agree that the “actual conflict” prong of the Cuyler test applies in a successive representation case, they dispute what means are available to a petitioner to prove it. Freund contends that under this court’s decision in Smith v. White, a petitioner may establish an actual conflict of interest through one of three means: (1) pointing to facts and circumstances that show that the lawyer’s representation of the former client related substantially to the lawyer’s representation of petitioner (“substantial relatedness”); (2) advancing evidence that the former client actually revealed confidential information to the lawyer during that prior representation (“confidential information”); or (3) relying on “other proof of inconsistent interests.” 815 F.2d 1401, 1406 (11th Cir.1987), cert. denied, 484 U.S. 863, 108 S.Ct. 181, 98 L.Ed.2d 133 (1987). The State, also citing Smith, asserts that only the first two means are available to the petitioner and that they must be employed in the conjunctive (that is, petitioner must prove both substantial relatedness and confidential information). The State argues that courts should forgo a showing of confidential information only in pretrial disqualification proceedings where preventing use of privileged discussions remains essential. We hold and reaffirm that Smith articulates this circuit’s test for proving an “actual conflict” in the successive representation context. 815 F.2d at 1405-06. We, however, disagree somewhat with each party’s interpretation of Smith. Rather, we interpret Smith to mean the following. An “actual conflict” of interest occurs when ' a lawyer has “inconsistent interests.” Smith, 815 F.2d at 1405. In order to prove that an “actual conflict” hindered petitioner’s lawyer’s performance, petitioner “must make a factual showing of inconsistent interests” or point to “specific instances in the record” to suggest an actual impairment of his or her interests. Smith, 815 F.2d at 1404; Oliver v. Wainwright, 782 F.2d 1521, 1524-25 (11th Cir.) (emphasis and internal quotation marks omitted), cert. denied, 479 U.S. 914, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986). “[generally, it is more difficult to prove that successive representation caused an actual conflict of interest than that simultaneous representation did so.” Smith, 815 F.2d at 1405. At minimum, petitioner must “show that either (1) counsel’s earlier representation of the witness was substantially and particularly related to counsel’s later representation of [petitioner], or (2) counsel actually learned particular confidential information during the prior representation of the witness that was relevant to [petitioner’s] later case.” Smith, 815 F.2d at 1405 (emphasis added). Even proof of both substantial relatedness and confidential information, however, may not necessarily be enough to demonstrate “inconsistent interests in a successive representation ease. See Smith, 815 F.2d at 1406. The situation may call for “other proof of inconsistent interests.” 815 F.2d at 1406. Overall, the “actual conflict” inquiry is fact-specific, consistent with the petitioner’s ultimate burden “to prove that his conviction was unconstitutional.” Smith, 815 F.2d at 1406. Contrary to the State’s position, we find no compelling reason to break with stare decisis in requiring as a necessary condition to proving an “actual conflict” the actual revelation of co