Melvyn Jack Rosenwald v. United States, 898 F.2d 585 (7th Cir. 1990). · Go Syfert
Melvyn Jack Rosenwald v. United States, 898 F.2d 585 (7th Cir. 1990). Cases Citing This Book View Copy Cite
76 citation events (28 in the last 25 years) across 12 distinct courts.
Strongest positive: Hall, Kevin T. v. United States (ca7, 2004-06-15)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 44 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Hall, Kevin T. v. United States (2×) also: Cited as authority (rule)
7th Cir. · 2004 · signal: see · quote attribution · 1 verbatim quote · confidence high
the pragmatic pressure on counsel in cases such as these is purely finan- cial; the lawyer does not want to lose a client.
discussed Cited as authority (rule) Hohn v. United States
D. Kan. · 2021 · confidence medium
The limitations period commences on the latest of four dates.”66 Petitioner relies upon subsection § 2255(f)(4), “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” This subsection “is an example of what 63 Snyder, 871 F.3d at 1128 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). 64 See, e.g., Garza v. Idaho, 139 S. Ct. 738, 742 (2019) (clarifying presumption of prejudice stemming from counsel’s failure to perfect appeal applies “regardless of whether the defendant has signed an appeal …
discussed Cited as authority (rule) In re: CCA Recordings 2255 Litigation
D. Kan. · 2021 · confidence medium
The limitations period commences on the latest of four dates.”66 Petitioner relies upon subsection § 2255(f)(4), “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” This subsection “is an example of what 63 Snyder, 871 F.3d at 1128 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). 64 See, e.g., Garza v. Idaho, 139 S. Ct. 738, 742 (2019) (clarifying presumption of prejudice stemming from counsel’s failure to perfect appeal applies “regardless of whether the defendant has signed an appeal …
discussed Cited as authority (rule) Mitchell v. United States
D. Kan. · 2021 · confidence medium
Accordingly, the Court denies the government’s motion to dismiss Petitioner’s Sixth Amendment claim on procedural default grounds. 69 See generally Black Order. 70 Snyder, 871 F.3d at 1128 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). 71 See, e.g., Garza v. Idaho, 139 S. Ct. 738, 742 (2019) (clarifying presumption of prejudice stemming from counsel’s failure to perfect appeal applies “regardless of whether the defendant has signed an appeal waiver,” and stating prejudice is presumed “with no further showing from the defendant of the merits of his underling claims” (…
discussed Cited as authority (rule) In re: CCA Recordings 2255 Litigation
D. Kan. · 2021 · confidence medium
Accordingly, the Court denies the government’s motion to dismiss Petitioner’s Sixth Amendment claim on procedural default grounds. 69 See generally Black Order. 70 Snyder, 871 F.3d at 1128 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). 71 See, e.g., Garza v. Idaho, 139 S. Ct. 738, 742 (2019) (clarifying presumption of prejudice stemming from counsel’s failure to perfect appeal applies “regardless of whether the defendant has signed an appeal waiver,” and stating prejudice is presumed “with no further showing from the defendant of the merits of his underling claims” (…
examined Cited as authority (rule) Coleman v. State (3×) also: Cited "see, e.g."
Ala. Crim. App. · 2011 · confidence medium
“An evidentiary hearing should be granted when there are important issues of fact which were not adequately developed at trial, the failure to develop the facts was not due to the defendant’s neglect or deliberate bypass, and the record does not conclusively demon strate that the petitioner is entitled to no relief.” Rosenwald v. United States, 898 F.2d 585, 588 (7th Cir.1990).
examined Cited as authority (rule) Kevin T. Hall v. United States (4×) also: Cited "see"
7th Cir. · 2004 · signal: cf. · confidence medium
Cf. Moss v. United States, 323 F.3d 445, 459-63 (6th Cir.2003) (explaining the effect of Mickens in cases of successive representation and ultimately applying Sullivan because the likelihood of prejudice under the circumstances exceeded that of a "traditional" successive representation). 28 In Rosenwald v. United States, cited in the dissent, we stated that the fact that Rosenwald did not go to trial did not undermine his allegations of prejudice. 898 F.2d 585, 587 (7th Cir.1990).
discussed Cited as authority (rule) Mickens v. Taylor
4th Cir. · 2002 · confidence medium
See Williams, 146 F.3d at 212-13 (analyzing actual prejudice for purposes of procedural default by examining the merits of peti- tioner's conflict of interest claim); Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir. 1990) (concluding that to show actual preju- dice the petitioner must establish the merits of his Sullivan claim).
examined Cited as authority (rule) People v. Ortega (4×)
Ill. App. Ct. · 2002 · confidence medium
App. 3d 117, 123 (2001), citing People v. Fife, 76 Ill. 2d 418, 424-25 (1979); United States v. Kladouris, 964 F.2d 658, 667 (7th Cir. 1992); Rosenwald v. United States, 898 F.2d 585, 588 (7th Cir. 1990). “[A] defendant who wishes to exercise the right to counsel of choice despite a conflict of interest must necessarily waive the right to effective assistance of counsel.” Holmes, 141 Ill. 2d at 222 . “[A] trial court must pass on the issue of whether to allow waiver of a conflict of interest ‘not with the wisdom of hindsight after the trial has taken place, but in the murkier pretrial …
cited Cited as authority (rule) People v. Johnson
Ill. App. Ct. · 2001 · confidence medium
Fife , 76 Ill. 2d at 424-25 ; United States v. Kladouris , 964 F.2d 658, 667 (7th Cir. 1992); Rosenwald v. United States , 898 F.2d 585, 588 (7th Cir. 1990).
cited Cited as authority (rule) People v. Johnson
Ill. App. Ct. · 2001 · confidence medium
Fife, 76 Ill. 2d at 424-25 ; United States v. Kladouris, 964 F.2d 658, 667 (7th Cir. 1992); Rosenwald v. United States, 898 F.2d 585, 588 (7th Cir. 1990).
discussed Cited as authority (rule) Walter Mickens, Jr. v. John B. Taylor, Warden, Sussex I State Prison (2×)
4th Cir. · 2001 · confidence medium
See Williams, 146 F.3d at 212-13 (analyzing actual prejudice for purposes of procedural default by examining the merits of petitioner’s conflict of interest claim); Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990) (concluding that to show actual prejudice the petitioner must establish the merits of his Sullivan claim).
discussed Cited as authority (rule) Mickens v. Taylor
4th Cir. · 2000 · confidence medium
See Williams, 146 F.3d at 212 - 13 (analyzing actual prejudice by examining the merits of petitioner's conflict of interest claim); Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir. 1990) (concluding that to show actual prejudice the peti- 8 tioner must establish the merits of his Sullivan claim).
discussed Cited as authority (rule) Walter Mickens, Jr. v. John B. Taylor, Warden, Sussex I State Prison (2×)
4th Cir. · 2000 · confidence medium
See Williams, 146 F.3d at 212-13 (analyzing actual prejudice by examining the merits of petitioner's conflict of interest claim); Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir. 1990) (concluding that to show actual prejudice the petitioner must establish the merits of his Sullivan claim).
cited Cited as authority (rule) Silva v. United States
N.D. Ill. · 1999 · confidence medium
Rosenwald v. United States, 898 F.2d 585, 588 (7th Cir. 1990).
discussed Cited as authority (rule) State v. Street (2×)
Wis. Ct. App. · 1996 · confidence medium
Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir. 1990) (quoting Strickland, 466 U.S. at 692 ); State v. Foster, 152 Wis. 2d 386, 392 , 448 N.W.2d 298, 301 (Ct. App. 1989) (co-defendants).
discussed Cited as authority (rule) Roosevelt Clay v. K. Cooper, Warden
7th Cir. · 1995 · confidence medium
At this trial, Jennings was asked, "And did Roosevelt Clay indicate to you that he was trying to work out a deal to lessen charges and wanted your help?" Jennings responded, "Yes, sir." Clay suggests that this testimony further corroborates his position that plea negotiations were ongoing when he made his confessions 2 See Rosenwald v. United States, 898 F.2d 585, 588 (7th Cir. 1990) (remanded for evidentiary hearing because important issues of fact involving legal ethics were not adequately developed at trial; Weidner, 866 F.2d at 963 ("[w]e are reluctant to decide a difficult question on hyp…
discussed Cited as authority (rule) Scott C. Ciak v. United States
2d Cir. · 1995 · confidence medium
See Anderson v. United States, 948 F.2d 704, 706 (11th Cir.1991) (holding that district court must conduct evidentiary hearing unless record shows conclusively that petitioner’s contentions are merit-less); Rosenwald v. United States, 898 F.2d 585, 588 (7th Cir.1990) (holding that evidentiary hearing should be granted where important issues of fact not fully developed at trial through no fault of defendant and where record does not conclusively demonstrate that petitioner is entitled to no relief).
discussed Cited as authority (rule) Mark Schmanke v. United States
7th Cir. · 1994 · signal: cf. · confidence medium
Guinan v. United States, 6 F.3d 468, 471 (7th Cir.1993) (defendant may wait to pursue his ineffective assistance of counsel claim in a collateral proceeding if the trial record is so inadequate as to prevent the reviewing court from determining whether or not defense counsel's performance was deficient); United States v. Taglia, 922 F.2d 413, 418 (7th Cir.) (same), cert. denied, 111 S.Ct. 2040 (1991); cf. Rosenwald v. United States, 898 F.2d 585, 587-88 (7th Cir.1990) (per curiam) (case remanded for evidentiary hearing because the petitioner did not know of the conflict at trial and the failur…
cited Cited as authority (rule) Jack W. Southard v. United States
7th Cir. · 1993 · confidence medium
Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990).
cited Cited as authority (rule) Ralph S. Hockett, II v. Jack R. Duckworth and Indiana Attorney General
7th Cir. · 1993 · confidence medium
Simmons v. Gramley, 915 F.2d 1128, 1139 (7th Cir.1990) (quoting Rosenwald v. United States, 898 F.2d 585, 588 (7th Cir.1990)).
cited Cited as authority (rule) Andres Zuniga v. United States
7th Cir. · 1992 · confidence medium
Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990).
cited Cited as authority (rule) David Bentley v. United States
7th Cir. · 1992 · confidence medium
Bentley relies on counsel's ineffectiveness for "cause," see Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990), but to no avail.
cited Cited as authority (rule) Gregory C. Lacy v. United States
7th Cir. · 1991 · confidence medium
Fagan v. Washington, No. 91-2118, slip op. at 3 (7th Cir. Sept. 5, 1991); Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990).
discussed Cited as authority (rule) Michael Webber v. United States
7th Cir. · 1991 · confidence medium
Webber alleges that he was denied effective assistance of counsel. "[I]neffective assistance of counsel, if established, constitutes cause for a default under Frady." Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990) (citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986)).
cited Cited as authority (rule) Amos D. Davenport v. United States
7th Cir. · 1991 · confidence medium
See United States v. Frady, 456 U.S. 152, 168 (1982); Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990).
cited Cited as authority (rule) Jerry L. Troutman v. United States
7th Cir. · 1991 · confidence medium
Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990) (citations omitted). 6 Troutman alleges ineffective assistance of counsel in his Sec. 2255 motion.
discussed Cited as authority (rule) David L. Harper v. United States
7th Cir. · 1991 · confidence medium
Rosenwald v. United States, 898 F.2d 585, 588 (7th Cir.1990) (no need to grant an evidentiary hearing if "the files and records of the case conclusively show that the prisoner is entitled to no relief").
cited Cited as authority (rule) Charles E. Froschauer v. United States
7th Cir. · 1991 · confidence medium
United States v. Frady, 456 U.S. 152, 168 (1982); Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990).
cited Cited as authority (rule) James W. Howard v. United States
7th Cir. · 1990 · confidence medium
Rodriguez v. United States, 906 F.2d 1153, 1159 (7th Cir.1990); Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990).
cited Cited as authority (rule) Richard P. Paul v. United States
7th Cir. · 1990 · confidence medium
Sec. 2255 ; Rosenwald v. United States, 898 F.2d 585, 588 (7th Cir.1990).
discussed Cited as authority (rule) United States of America Ex Rel. Nathaniel Simmons v. Richard Gramley (2×)
7th Cir. · 1990 · confidence medium
See also United States v. Frady, 456 U.S. 152, 167-68 , 102 S.Ct. 1584, 1594 , 71 L.Ed.2d 816 (1982); Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990); Buelow v. Dickey, 847 F.2d 420, 425 (7th Cir.1988), cert. denied sub nom.
discussed Cited "see" United States v. Michael Coscia
7th Cir. · 2021 · signal: see · confidence high
See Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir. 1990) (“The pragmatic pressure on counsel in cases such as these is purely financial—the lawyer does not want to lose a client whether that client is seeking advice on civil or on criminal matters.
cited Cited "see" Robert Lee Holleman v. Jack Duckworth
7th Cir. · 1998 · signal: see · confidence high
See Rosenwald v. United States, 898 F.2d 585, 588 (7th Cir.1990) (per curiam).
discussed Cited "see" Carlos J. Velarde v. United States
7th Cir. · 1992 · signal: see · confidence high
See Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990) (ineffective assistance of counsel may itself provide cause for procedural default) (citing Murray v. Carrier, 477 U.S. 478, 483, 488-89, 106 S.Ct. 2639, 2642, 2645-2646 , 91 L.Ed.2d 397 (1986)).
discussed Cited "see" King v. State (2×)
Wyo. · 1991 · signal: see · confidence high
See likewise Rosenwald v. United States, 898 F.2d 585 (7th Cir.1990) and Developments in the Law, Conflicts of Interest in the Legal Profession, 94 Harv.
cited Cited "see" James McConico Jr. v. State of Alabama, John E. Nagle
11th Cir. · 1990 · signal: see · confidence high
See Rosenwald v. United States, 898 F.2d 585, 587-88 (7th Cir.1990) (quoting Castillo v. Estelle, 504 F.2d 1243, 1245 (5th Cir.1974)). 3 .
discussed Cited "see, e.g." Wimberly v. State
Ala. Crim. App. · 2005 · signal: see, e.g. · confidence medium
See, e.g., Rosenwald v. United States, 898 F.2d 585, 587-88 (7th Cir.1990); Pinkerton v. State, 395 So.2d at 1086 ; People v. Wandell, 75 N.Y.2d 951 , 555 N.Y.S.2d 686, 686-87 , 554 N.E.2d 1274, 1274-75 (1990).
discussed Cited "see, e.g." Wynn v. State (2×)
Ala. Crim. App. · 2000 · signal: see, e.g. · confidence medium
See, e.g., Rosenwald v. United States, 898 F.2d 585, 587-88 (7th Cir.1990); Pinkerton v. State, 395 So.2d at 1086 ; People v. Wandell, 75 N.Y.2d 951 , 555 N.Y.S.2d 686 , 554 N.E.2d 1274, 1274-75 (1990).
discussed Cited "see, e.g." M.S. v. State
Ala. Crim. App. · 2000 · signal: see, e.g. · confidence medium
See, e.g., Rosenwald v. United States, 898 F.2d 585, 587-88 (7th Cir.1990); Pinkerton v. State, 395 So.2d at 1086 ; People v. Wandell, 75 N.Y.2d 951 , 554 N.E.2d 1274, 1274-75 , 555 N.Y.S.2d 686 (1990).
discussed Cited "see, e.g." MS v. State
Ala. Crim. App. · 2000 · signal: see, e.g. · confidence medium
See, e.g., Rosenwald v. United States, 898 F.2d 585, 587-88 (7th Cir.1990); Pinkerton v. State, 395 So.2d at 1086 ; People v. Wandell, 75 N.Y.2d 951 , 554 N.E.2d 1274, 1274-75 , 555 N.Y.S.2d 686 (1990).
discussed Cited "see, e.g." Molton v. State (2×)
Ala. Crim. App. · 1994 · signal: see, e.g. · confidence low
See, e.g., Rosenwald v. United States , 898 F.2d 585 , 587-88 (7th Cir. 1990); Pinkerton v. State , 395 So.2d at 1086; People v. Wandell , 75 N.Y.2d 951 , 555 N.Y.S.2d 686 , 686-87 , 554 N.E.2d 1274 , 1274-75 (1990).
discussed Cited "see, e.g." United States v. Ziegenhagen
W.D. Wis. · 1991 · signal: see also · confidence medium
Murray v. Carrier, 477 U.S. 478 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986); see also Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990) (citing Murray, 477 U.S. at 488 , 106 S.Ct. at 2645 ); United States v. Kovic, 830 F.2d 680 , 684 n. 9 (7th Cir.1987), cert, denied, 484 U.S. 1044 , 108 S.Ct. 778 , 98 L.Ed.2d 864 (1988).
cited Cited "see, e.g." United States v. Infelise
N.D. Ill. · 1991 · signal: see also · confidence low
See also Rosenwald v. United States, 898 F.2d 585 (7th Cir.1990).
Retrieving the full opinion text from the archive…
Melvyn Jack ROSENWALD, Petitioner-Appellant,
v.
UNITED STATES of America, Defendant-Appellee
88-3478.
Court of Appeals for the Seventh Circuit.
Apr 2, 1990.
898 F.2d 585
1990 U.S. App. LEXIS 4718
1990 WL 35607
Melvyn J. Rosenwald, P.O. Box 1000, Tallahassee, Fla., pro se., Frederick J. Hess, U.S. Atty., Stephen B. Clark, Asst. U.S. Atty., East St. Louis, Ill., for U.S.
Bauer, Flaum, Easterbrook.
Cited by 56 opinions  |  Published
PER CURIAM.

Melvyn Rosenwald pleaded guilty to a charge of aiding and abetting the distribution of cocaine in the Southern District of Illinois. On September 8, 1986, Chief Judge Foreman sentenced him to ten years in prison to be followed by three years of special parole. The sentence was to run concurrently with a sentence of the same length imposed for narcotics activity in the Southern District of Florida. Rosenwald now attacks his Illinois conviction and sentence in a motion under 28 U.S.C. § 2255. He alleges that he was denied the effective assistance of counsel in that his attorney, Ellis S. Simring, knowingly gave him false information as to the magnitude of the sentence he could expect in order to encourage Rosenwald to plead guilty. Simr-ing did this, Rosenwald charges, because Simring was simultaneously performing legal work on an unrelated civil matter for Rostyslaw Kindratiw, the government’s chief witness against Rosenwald, and because Simring wished to avoid having to cross-examine his own client. The district court denied Rosenwald’s motion, holding[*587] that Rosenwald had shown no prejudice from his counsel’s alleged misdeeds. Ro-senwald filed a timely notice of appeal to this Court.

Rosenwald’s argument is in two related parts. First he argues that the conflict of interest under which Simring labored deprived Rosenwald of the effective' assistance of counsel, and that because of the conflict, the representation he received was adversely affected. Second, he argues that even without reference to the conflict of interest, Simring’s misinformation alone made his representation constitutionally inadequate.

We note at the outset that Rosen-wald failed to raise these matters by direct appeal from his conviction. This bars consideration of the issues on a motion under § 2255 unless cause for the procedural default and prejudice arising from it are shown. United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Norris v. United States, 687 F.2d 899 (7th Cir.1982); Williams v. United States, 805 F.2d 1301 (7th Cir.1986), cert. denied, 481 U.S. 1039, 107 S.Ct. 1978, 95 L.Ed.2d 818 (1987). Rosenwald’s § 2255 motion alleges ineffective assistance of counsel, and ineffective assistance, if established, constitutes cause for a default under Frady. Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986). Where the ineffectiveness of coun sel is predicated on a conflict of interest and the trial court is made aware of the conflict, prejudice is presumed if the attorney “actively represented conflicting interests.” Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984), quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980). Even if the trial court is not notified at trial of the conflict, the movant is still not required to make the full showing of prejudice usually required under Strickland (i.e., that it is more likely than not that the outcome of the proceeding would have been different had the attorney acted properly), but needs only to show that an “actual conflict of interest adversely affected his lawyer’s performance.” Strickland, 466 U.S. at 692, 104 S.Ct. at 2067; United States v. Horton, 845 F.2d 1414, 1418 (7th Cir.1988); Walberg v. Israel, 766 F.2d 1071, 1075 (7th Cir.), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). Because Ro-senwald never raised the conflict before his conviction, he must show an actual conflict of interest and an adverse effect of that conflict on the representation he received.

The district court, without affording an evidentiary hearing and without reaching the cause component of the Strickland standard, found that Rosenwald had not shown any prejudice arising from Simring’s representation of the government’s witness. The district court wrote:

Simring’s representation of Kindratiw in unrelated civil matters was not so fraught with the danger of dividing counsel’s loyalties as to justify a present finding of a sixth amendment violation as a result of conflicting interests. Petitioner has not set forth any facts demonstrating that Simring decided not to pursue a possible defense or misinformed petitioner because of his representation of Kin-dratiw. Furthermore, petitioner never went to trial and Kindratiw did not appear at petitioner’s sentencing hearing. Hence, Simring’s representation of Kin-dratiw on unrelated civil matters did not prejudice his representation of the petitioner.

The district court may have believed that the civil nature of Simring’s representation of Kindratiw made the conflict less onerous. We disagree with that proposition. The pragmatic pressure on counsel in cases such as these is purely financial—the lawyer does not want to lose a client whether that client is seeking advice on civil or on criminal matters. The ethical dilemma is also the same—the attorney must still guard secrets and confidences and must seek to promote the client’s interests whether the client is being represented in a civil or a criminal matter. See ABA Model Code of Professional Responsibility, DR 4-101, EC 4-5 and n. 7 (confidentiality), DR 5-101(A), EC 5-14, 5-15, 5-16 (conflict of interest); ABA Model Rules of Profession[*588] al Conduct Rule 1.6(a) (confidentiality), 1.7(b) (conflict of interest). The fact that the simultaneous representation is on a civil matter makes no difference in the conflict of interest inquiry. See Castillo v. Estelle, 504 F.2d 1243, 1245 (5th Cir.1974).

We also disagree with the district court’s ruling that the fact that Rosenwald did not go to trial undermined his allegations of prejudice. If Simring took steps in advance of trial to avoid having to cross-examine Kindratiw, Rosenwald was nonetheless the victim of Simring’s divided loyalties. Holloway v. Arkansas, 435 U.S. 475, 490, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978); United States v. Marrera, 768 F.2d 201, 207 (7th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1209, 89 L.Ed.2d 321 (1986) (review of counsel’s performance includes actions not taken at trial). The record before us does not conclusively establish that Simring’s representation of Ro-senwald was unaffected by his relationship with Kindratiw.

An evidentiary hearing should be granted when there are important issues of fact which were not adequately developed at trial, the failure to develop the facts was not due to the defendant’s neglect or deliberate bypass, and the record does not conclusively demonstrate that the petitioner is entitled to no relief. See Tucker v. Kemp, 776 F.2d 1487, 1491 (11th Cir.1985), cert. denied, 478 U.S. 1022, 106 S.Ct. 3340, 92 L.Ed.2d 743 (1986); 28 U.S.C. § 2255 (“Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon_”) (emphasis supplied). If the facts alleged in Rosenwald’s motion are true, he is entitled to relief. Rosenwald’s motion are true, he is entitled to relief. Rosenwald alleged that Simring simultaneously represented Kindratiw, and he alleged that because of that simultaneous representation, Simring gave bad advice he would not otherwise have given. These are serious charges indeed, and they are not clearly belied by the record. On the contrary, the record contains ample corroboration of the fact that Simring was simultaneously representing Kindratiw, and that Simring advised Rosen-wald to plead guilty. Rosenwald was not able to make a record on his counsel’s conflict of interest at the time of the original proceeding because he did not know of the conflict, and because the proceeding was not allowed to progress to the point at which Simring would have been required to cross-examine his client Kindratiw. Rosen-wald’s failure to develop the record is not blameworthy.

A defendant has a right to conflict-free counsel, Dean v. Duckworth, 748 F.2d 367, 369 (7th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1188, 84 L.Ed.2d 335 (1985), and a waiver of that Sixth Amendment right must be knowing and intelligent. See United States ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1179-81 (7th Cir.1983), cert. denied, 464 U.S. 1072, 104 S.Ct. 982, 79 L.Ed.2d 219 (1984). There cannot have been a knowing waiver if Rosenwald was not aware of the conflict. An evidentiary hearing is necessary to determine whether Simring’s representation of Rosenwald was influenced by his desire to protect his relationship with Kindratiw.

If after an evidentiary hearing it is found that Simring’s representation of Rosenwald was not adversely affected in any way by the simultaneous representation of Kindratiw, Rosenwald must meet the ordinary Strickland standard of prejudice. He must show that, but for counsel’s errors, the outcome of the proceeding would probably have been different. Beyond the multiple representation, Rosenwald claims that Simring provided constitutionally inadequate assistance by misrepresenting the amount of time Rosenwald would have to serve if he pleaded guilty. Rosenwald does not suggest, however, that the outcome of the proceeding would have differed had he been correctly informed. Rosenwald has not argued that he is in fact innocent of the charges to which he pleaded guilty. Although he makes brief mention (for the first time in this Court) of a possible “chain of custody” defense, it is not at all probable that he would have been acquitted after a full trial, nor is it probable that he would[*589] have received a shorter sentence after a conviction. Although the improper advice Rosenwald alleges Simring gave would constitute an “adverse effect” on the representation if prompted by the simultaneous representation of Kindratiw, it would not ere-ate prejudice under the normal Strickland standard. If Simring’s representation of Rosenwald was not affected by the simultaneous representation of Kindratiw, then Rosenwald is not entitled to relief.

This case must be remanded for an evi-dentiary hearing to determine whether Simring’s representation of Rosenwald was adversely affected by the simultaneous representation of Kindratiw.

REVERSED AND REMANDED.