                            In the
 United States Court of Appeals
               For the Seventh Circuit
                        ____________

No. 07-3428
M ATTHEW S. C ARLSON,
                               v.             Petitioner-Appellee,

C ATHY JESS,
                                          Respondent-Appellant.
                        ____________
           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
               No. 06 C 481—Lynn Adelman, Judge.
                        ____________
      A RGUED M ARCH 31, 2008—D ECIDED M AY 19, 2008
                        ____________


 Before K ANNE, E VANS, and SYKES, Circuit Judges.
  E VANS, Circuit Judge. After a one-day jury trial, Mat-
thew Carlson was convicted of first-degree sexual
assault of a child and sentenced to 55 years in a Wis-
consin state prison. He now seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, arguing that the state trial
court’s denial of his motion to substitute counsel and for
a continuance violated his Sixth Amendment right to
counsel of choice and his Fourteenth Amendment right
to due process. He also maintains that the state court of
appeals’ decision affirming the trial court’s judgment
was unreasonable. The district court (Judge Lynn Adel-
2                                                 No. 07-3428

man) agreed with Carlson and granted his petition in a
comprehensive opinion. Carlson v. Jess, 507 F. Supp. 2d
968 (E.D. Wis. 2007). The State now appeals.
  Back in 1996, Carlson was convicted of one count
of sexual assault of a boy under the age of 13. At that time,
the complainant here, we’ll call him “Gino,” was 9 years
old and a friend of Carlson’s stepson. Upon hearing of the
conviction, Gino’s grandparents asked him whether
Carlson had ever assaulted him. Gino denied any im-
proper behavior on the part of Carlson.
  Six years later, in 2002 when Gino was 15 years old, he
alleged that Carlson sexually assaulted him in 1996
and 1998. Gino initially complained to the staff of Raw-
hide Boys Ranch,1 where he then resided. Soon thereafter,
the Ozaukee County 2 district attorney charged Carlson
with several counts of sexually assaulting Gino. Carlson
hired attorney Randall Kaiser to represent him. At
Carlson’s May 20, 2002, arraignment, the trial court set
a trial date of August 27, 2002. The parties agreed that


1
  On its Web site, www.rawhide.org, Rawhide describes itself
as “a faith-based, non-profit residential care center dedicated
to changing the lives of troubled teen boys.” Its mission is to
“inspire and equip at-risk, teenage boys to become responsible
young men through family-centered care, treatment, and
education.”
2
  Ozaukee County is located just north of Milwaukee County
on the western shores of Lake Michigan. Ozaukee County is
rather small, only some 86,000 residents, compared to Mil-
waukee County which checks in, according to a 2006 estimate,
at 915,000. Also, according to U.S. Census Bureau statistics,
Ozaukee County is fairly wealthy: its median household in-
come is $69,174 as compared to Milwaukee County’s $39,481.
No. 07-3428                                                3

the trial would take, at most, two days to complete.
Carlson remained in jail from the time of his arrest until
his eventual trial.
  In the weeks leading up to the trial, Carlson requested
two brief continuances, one for additional preparation
time and one to permit Kaiser’s co-counsel to assist him
at trial. The trial judge denied both requests, citing his
calendar and the fact that the complainant was a juve-
nile. In the meantime, Carlson lost confidence in
Kaiser’s ability to represent him. On August 17, ten days
before the scheduled start of the trial, Carlson notified
Kaiser that he had hired another attorney, Robin Shellow,
to replace him. Two days later, Kaiser moved to with-
draw as counsel. On August 23, Carlson, with Shellow’s
help, moved to substitute Shellow for Kaiser as his
counsel, conditioned upon an adjournment so that Shellow
could prepare for trial. In support of the motion,
Ms. Shellow submitted a detailed explanation of the
additional investigation she wanted to conduct before trial.
  The trial judge, however, did not sit during the week of
August 19 and thus did not promptly address Kaiser’s
motion to withdraw or Carlson’s motion for substitu-
tion and a continuance. On August 26, the day before
the trial was scheduled to begin, the judge returned to
the bench and held a hearing on the motions. There,
Kaiser stated:
    I am in a very tough position I think if I am not allowed
    to withdraw. As I said, our communication has com-
    pletely broken down. We have differences of opin-
    ions, and I know they don’t feel confident, he and his
    family. I think it’s better for everyone if I withdraw.
     I don’t feel that the state is prejudiced by allowing
    me to withdraw. It’s my understanding that they
4                                               No. 07-3428

    really only have one citizen witness. This is a case
    that allegedly occurred approximately six years ago
    and was not charged until April of this year. So I don’t
    think Attorney Shellow or I—I don’t want to speak
    for her, but I don’t think we are requesting a long
    adjournment. This is the first request that Mr.
    Carlson has made for a new attorney.
Kaiser also explained that Carlson was not seeking to
delay the proceedings unnecessarily and reminded the
court that Carlson was and would remain in custody
during a continuance. The prosecutor opposed Kaiser’s
request because Shellow “ha[d] already indicated in
papers that she wouldn’t be able to proceed tomorrow”
and because the complainant was a child.
  The trial judge conceded that “the defendant has a
right to counsel,” but stated:
    I think here there are paramount issues. And the first
    issue is the orderly administration of this Court.
    I said last week or on the 14th that it would be
    months before this case got back on the trial calendar.
    And these late motions to withdraw, I am not in-
    clined to grant it—in fact, I am not going to grant the
    motion to withdraw. This case is going to trial tomor-
    row. I don’t see any reason why it can’t go. This
    Court is prepared to try it.
      I also am concerned that you have a young victim
    in this. Not as young as some the Court sees, but
    young. And I don’t see anything in the motion papers
    that were filed by Attorney Shellow that is of a magni-
    tude that causes the Court to hesitate and say this
    Court can’t go to trial tomorrow. I am ordering it to
    go ahead.
No. 07-3428                                              5

  Shellow then asked to be heard and stated that the
case involved factual issues that Kaiser had not ex-
plored and constitutional issues that he had not
researched. She explained that she wished to explore
Gino’s motives for making the allegation and to engage an
expert regarding a number of questions, including ques-
tions raised by Gino’s reporting of the assaults to Rawhide
staff years after they allegedly occurred. Shellow stated
that she also wished to examine possible improper police
coaching and a Miranda issue. She also noted that Kaiser’s
failure to explore any of these matters raised issues of
ineffective assistance of counsel.
  The judge’s only response was to ask Shellow if she
was prepared to try the case tomorrow. When Shellow
replied that she was not, the court stated:
     Then I am not granting the motion. This case is
   staying on the calendar. I understand the problems,
   but I find that a case that’s been set 90 days out, and
   then to come in the day before and say I want
   to withdraw and I want it taken off the Court’s calen-
   dar, is a serious problem for administration of this
   Court. And I realize there are issues. But I think Mr.
   Carlson can get a fair trial. His attorneys have been
   working on this. They have been in court numerous
   times. And I think there are other issues that have to
   be factored into the analysis, and I have done that,
   and I am denying the request.
  The next day, before the trial commenced, Carlson
himself asked to address the court. He stated:
   I have tried on numerous occasions to convey my
   concerns with Mr. Kaiser, to no avail. I have been
   met with argumentative comments, I have been met
6                                              No. 07-3428

    with the impression to take a plea bargain which I’ve
    signed several papers stating I would not, and that
    seems to be our whole matters. . . .
      ....
       . . . I have not received one piece of paper con-
    cerning this case since I have been incarcerated. I
    have not one sheet of paper about this case to look
    back on when I am in jail. Also, one of [Kaiser’s]
    associates, who I will not name, when I met the
    first time I could swear under oath I have smelled
    liquor on his breath. I am not—I am not gonna men-
    tion any names, I didn’t want to risk a lawsuit. And
    also I have talked to Mr. Kaiser several times about
    different witnesses that obviously he doesn’t feel
    I need, and I have mentioned to him and so have my
    parents and my wife about possibly different people
    we could bring, prior to May 23rd or whatever that
    was, and I still have not heard nothing about that
    either.
  The judge acknowledged that “there are situations where
release of counsel is warranted, when there’s an ethical
dilemma, when there is a situation where the rela-
tionship has broken down to the point where there’s no
communication,” but he said Carlson and Kaiser’s rela-
tionship was only suffering because of “differing views of
how the case is approached,” and “strategic decision[s].”
The judge continued:
    Against [Carlson’s request to substitute counsel and
    for a continuance] the Court has the responsibility,
    some countervailing responsibilities. One is to admin-
    istration of this Court. . . . I have the victim rights
    obligations that I have to consider, I have to consider
No. 07-3428                                                7

    a fair trial for you, and I have to consider the adminis-
    tration of this Court’s calendar. . . . I don’t have
    another date that could fit a trial like this in until
    probably after the beginning of the year. . . . I also
    have a young victim, not the youngest as I acknowl-
    edged yesterday, who has to have this hanging out
    over their head. And on balance I denied the request.
    And I am comfortable with the request, I’m comfort-
    able that Mr. Kaiser can represent you in a competent
    manner. 90 days ago this trial date was set, and the
    desire to have a different lawyer or these other issues
    should have been brought up much earlier in the
    proceedings.
Kaiser then addressed the judge one last time, imploring
him to allow the substitution:
    [W]e’ve had a breakdown in communication, and
    that is one of the factors I think to allow withdrawal
    of an attorney. I understand it’s sort of the last
    minute, but he hired new counsel and I’m still of the
    opinion that because of the total breakdown in com-
    munication that we’ve had, that—and there is no
    taxpayer expense, this is only a one-day trial, I
    don’t, considering the long time it took the alleged
    victim to report this case, I don’t think a short ad-
    journment would prejudice anyone but the Court. So
    I’m renewing my objection and just stating that
    we’ve had a breakdown in communication.
  The court denied the motion and trial proceeded as
scheduled. Gino testified that Carlson sexually assaulted
him on several occasions in 1996 and 1998 when he spent
the night with Carlson’s stepson and once when he rode
in a car with Carlson. A detective testified about Gino’s
initial statement accusing Carlson of sexual assault. Gino’s
8                                               No. 07-3428

mother testified that Gino spent the night with Carlson’s
stepson on several occasions and rode in a car with him
at least once. She also testified that her son had never
indicated any animosity toward Carlson or concerns
about visiting his stepson prior to reporting the sexual
assaults in 2002. Carlson testified, denying Gino’s charges.
Carlson’s wife testified that they lived in a small apart-
ment and that she was home during all of her son’s
sleepovers and thus would have seen or heard any inter-
action between Carlson and Gino. The jury convicted
Carlson of five counts of first-degree sexual assault of a
child and, as we said, he was sentenced to 55 years
in prison.
  Carlson appealed to the state court of appeals, arguing
among other things that the trial judge’s refusal to grant
his motion for substitution of counsel and a continu-
ance deprived him of his right to counsel of choice and
his right to due process of law. The court of appeals, in a
per curiam decision that noted “This opinion will not be
published,” affirmed, and the state supreme court sub-
sequently declined to review the case.
   Having exhausted his state court remedies, Carlson
petitioned the federal district court for habeas relief,
arguing that the state court’s decision was an unrea-
sonable determination of the facts and contrary to, or an
unreasonable application of, clearly established federal
law. The district court first determined that the record
contained no evidence supporting the state trial judge’s
finding that communication between Carlson and Kaiser
had not totally broken down. Accordingly, the district
court found that because the finding was unreasonable,
the state court of appeals’ decision to accept and rely on
it was also unreasonable. With this determination, the
No. 07-3428                                                9

district court then examined the merits of Carlson’s
constitutional claim and concluded that the trial court’s
denial of Carlson’s motion for substitution of counsel
and a continuance was arbitrary and had an adverse
effect on the presentation of his case. The district court
then granted Carlson’s petition for relief.3
  We review the district court’s findings of fact for clear
error and its legal conclusions, as well as mixed questions
of law and fact, de novo. Harding v. Walls, 300 F.3d 824, 827
(7th Cir. 2002). Under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), a federal court
may issue a writ of habeas corpus only if the decision of
the last state court to examine the merits of the peti-
tioner’s claim (here, the court of appeals) (1) was “contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States,” or (2) “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(1)-(2).
  The first issue is whether the district court correctly
determined that the state court of appeals affirmed the
trial court’s denial of Carlson’s motion for substitution
and a continuance based on an unreasonable factual
determination—namely, that communication between
Carlson and Kaiser had not completely broken down. A
state court’s factual findings are presumptively cor-
rect absent rebuttal by clear and convincing evidence. 28
U.S.C. § 2254(e)(1). Nevertheless, “[a] federal court can


3
  The district court did not address Carlson’s argument that
the court of appeals’ decision was contrary to, or an unrea-
sonable application of, clearly established federal law.
10                                            No. 07-3428

disagree with a state court’s credibility determination
and, when guided by AEDPA, conclude the decision
was unreasonable or that the factual premise was incor-
rect[.]” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
  The record reveals absolutely no support for the state
trial court’s determination that Carlson’s motion for
substitution was based on “differing views of how the
case is approached” and “strategic decision[s].” Rather,
the record is littered with statements by Kaiser and
Carlson himself that communications had completely
broken down. On August 26, Kaiser stated that communi-
cation “has completely broken down.” On August 27,
he repeated this statement twice, telling the court that
“we’ve had a breakdown of communication” and that
there had been a “total breakdown in communication.”
That same day, Carlson himself told that court that he
had “tried on numerous occasions to convey [his] con-
cerns with Mr. Kaiser, to no avail” and that he “still
ha[d] not heard nothing” about his requests that Kaiser
interview certain witnesses. Based on these statements,
the trial judge should have at least probed the matter
further by asking Carlson and Kaiser some follow-up
questions. Instead, however, the judge simply made a
factual finding that “the relationship has [not] broken
down to the point where there’s no communication.” The
trial court’s statement that Kaiser had “discussed wit-
nesses” with Carlson is belied by Carlson’s statement
that he had not yet heard anything from Kaiser on that
issue. With nothing in the record to back it up, the trial
judge’s finding was clearly unreasonable.
  The court of appeals also neglected to consider the
evidence supporting Carlson’s motion. In its decision, it
merely paraphrased the trial judge’s findings and stated
No. 07-3428                                               11

that it was “not convinced that the trial court erred when
it concluded that the asserted conflict between counsel
and Carlson was not so great that it resulted in a total
lack of communication.” Thus, the district court properly
found that both the trial court’s finding and the court of
appeals’ acceptance and reliance on that finding was
unreasonable. See 28 U.S.C. § 2254(d)(2); see also Taylor v.
Maddox, 366 F.3d 992, 1008 (9th Cir. 2004) (“In passing
section 2254(d)(2), Congress has reminded us that we
may no more uphold [an unreasonable] factual deter-
mination than we may set aside reasonable state-court
fact-finding.”).
  The second issue is whether the district court correctly
determined that the trial court’s denial of his motion
for substitution and a continuance violated Carlson’s
constitutional rights. Because the trial court based its
decision on an unreasonable factual determination, the
substantive merits of Carlson’s claim are analyzed under
the pre-AEDPA standard—that is, de novo—because there
is no state court analysis to apply AEDPA standards to.
Conner v. McBride, 375 F.3d 643, 655 n.5 (7th Cir. 2004). The
pre-AEDPA standard directs us to “dispose of the
matter as law and justice require.” 28 U.S.C. § 2243.
  Carlson maintains that the trial court’s decision vio-
lated his Sixth Amendment right to counsel of choice
and his Fourteenth Amendment right to due process. The
Sixth Amendment secures the right to the assistance of
counsel. It also includes the right to select, and be repre-
sented by, one’s preferred attorney; thus, trial courts
must recognize a presumption in favor of a defendant’s
counsel of choice. Wheat v. United States, 486 U.S. 153, 164
(1988). Accordingly, the Sixth Amendment bars a court
from denying a defendant the right to retain counsel of
12                                                No. 07-3428

his choice arbitrarily or unreasonably. Ford v. Israel, 701
F.2d 689, 692 (7th Cir. 1983). The Fourteenth Amendment’s
Due Process Clause also bars a court from denying a
defendant’s motion for a continuance arbitrarily or unrea-
sonably. Ungar v. Sarafite, 376 U.S. 575, 589 (1964). Thus,
motions for substitution of retained counsel and for a
continuance can implicate both the Sixth Amendment
right to counsel of choice and the Fourteenth Amendment
right to due process of law. See Morris v. Slappy, 461 U.S. 1,
11 (1983).
  The right to counsel of choice, however, is qualified
in several respects. One qualification is that an indigent
defendant generally has no right to have his counsel of
choice appointed. Wheat, 486 U.S. at 159. Thus, when a
trial court refuses to appoint new counsel, the defendant
can only show a denial of a constitutional right if he
can establish that his counsel was ultimately ineffec-
tive—that is, he must show prejudice as required by
Strickland v. Washington, 466 U.S. 668 (1984). United States
v. Harris, 394 F.3d 543, 554 (7th Cir. 2005); United States v.
Zillges, 978 F.2d 369, 372 (7th Cir. 1992). The Supreme
Court recently resolved a circuit split and held that a
defendant claiming a denial of the right to counsel of
choice does not have to show Strickland prejudice. See
United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct. 2557,
2562 (2006). At the time Carlson’s conviction became
final, our governing case, Rodriguez v. Chandler, 382 F.3d
670 (7th Cir. 2004), stated a similar rule. However,
Rodriguez did require a defendant claiming a denial of
the right to counsel of choice to establish that the denial
had an “adverse effect” on the presentation of his case. Id.
at 675. Thus, to resolve the merits of Carlson’s constitu-
tional claim, we must answer two questions: (1) was the
No. 07-3428                                                    13

trial court’s denial of his motion for substitution of coun-
sel and a continuance arbitrary and if so, (2) did the
denial have an adverse effect on the presentation of his
case?
  First, we examine whether the trial court’s denial of
Carlson’s motion for substitution of counsel and a con-
tinuance was arbitrary. Because trial courts have broad
discretion on matters of continuances, “only an unreason-
ing and arbitrary ‘insistence upon expeditiousness in the
face of a justifiable request for delay’ violates the right to
the assistance of counsel.” Morris, 461 U.S. at 11-12 (quot-
ing Ungar, 376 U.S. at 589). The State argues that the
trial court’s exercise of discretion was not arbitrary be-
cause it listened to the arguments and concluded that
(1) the timing of the request for adjournment, (2) the
young age of the victim, and (3) the satisfactory rela-
tionship between Kaiser and Carlson all necessitated
denying Carlson’s request for an adjournment to sub-
stitute counsel. We have already determined that the
trial court’s conclusion that the relationship between
Kaiser and Carlson was satisfactory was unreasonable.4
The other two arguments fail as well.
  The State’s argument that Carlson was not entitled to a
continuance because of the timing of his request is far
from compelling. Courts have denied motions for con-


4
  In its brief, the government states that “there is no reason to
think that the [trial] court would not have granted the motion
to substitute, had Shellow been prepared to try the case on
the scheduled date.” Rather than justifying the trial court’s
decision, this statement actually reveals that the court’s primary
consideration was its calendar, not the relationship between
Carlson and his counsel or the age of the complainant.
14                                              No. 07-3428

tinuances based on administrative concerns in a number
of fact situations. See Carlson, 507 F. Supp. 2d at 982 (col-
lecting cases). Here, however, there were few administra-
tive problems to consider. This was a relatively simple
case, and the parties predicted that the trial would take
a little over a day. The State had only three witnesses,
Gino, his mother, and a police officer, who could have
easily appeared at a later date. Carlson filed his motion
a week before trial; through no fault of his own, the
court did not hear it until the day before the trial was set
to start. Nevertheless, even at that point, the witnesses
and jurors had not yet assembled. The court repeatedly
cited its calendar as a reason for denial, saying that
“it would be months before this case got back on the
trial calendar.” But, trial dates open up all the time—for
instance, when a defendant decides to plead guilty.5
Even the inconvenience of pushing the trial back a
month or so would be easily outweighed by Carlson’s
interest in having his counsel of choice properly
prepared to defend him against such serious charges.
  Furthermore, Carlson was obviously not seeking to
delay the trial unnecessarily. As Ms. Shellow pointed out,
Carlson had remained in jail from the time of his arrest;



5
  We also note that Ozaukee County, perhaps because it’s
fairly affluent, does not appear to be a hotbed of criminal
activity. According to the Wisconsin courts Web site,
www.wicourts.gov, the judges in Ozaukee conducted a total of
only 22 jury trials in all classes of criminal cases—felony,
misdemeanor, and criminal traffic—in 2007. That’s not a
very heavy diet of cases compared to its neighboring county
to the south (Milwaukee) where 389 such jury trials were
conducted in 2007.
No. 07-3428                                               15

thus, he had nothing to gain by needlessly delaying
the trial. He had never requested to substitute counsel
previously and had no history of “gaming” the system. The
trial judge repeatedly referred to Carlson’s motion as
“late,” but considering that the charges against him
had been pending such a relatively short time and that
he filed his motion to substitute immediately after he
retained new counsel, the timing of his motion was cer-
tainly understandable. Finally, Carlson was not asking
for a long continuance. Notably, we do not know how
long Ms. Shellow would have needed to prepare because
the trial judge never asked her. Apparently, any delay
would have been unacceptable to the trial judge. That
sort of rigidity can only be characterized as arbitrary. See,
e.g., Linton v. Perini, 656 F.2d 207, 212 (6th Cir. 1981)
(holding that, in a case involving serious charges, a trial
judge acted arbitrarily in denying a continuance where
there was no evidence of a scheme to delay the trial, no
showing of inconvenience to the witnesses, opposing
counsel, or the court, and the length of the requested
delay was not unreasonable).
  The State’s argument that Carlson was not entitled to a
continuance because of the young age of the victim,
although facially legitimate, is unpersuasive on the record
in this case. Undoubtedly, a trial court may reasonably
consider the effect of a continuance on a complainant.
Here, however, the court never actually considered
whether a continuance would affect Gino. Despite the
court’s repeated statements to the contrary, the record
indicates that a short delay would not have been detri-
mental to him. His initial complaint came some four to
six years after the alleged assaults; thus, he would not
appear to be at risk for forgetting relevant information a
16                                                No. 07-3428

few months later. Moreover, Gino was a teenager, not a
young child, and there was no evidence that a brief
delay would have caused him emotional or psychological
harm.
  Against these ultimately unconvincing reasons to deny
Carlson a continuance were several compelling reasons
he proffered in support of his motion for a substitution.
Specifically, Carlson stated that (1) communication be-
tween Kaiser and himself had totally broken down;
(2) Kaiser had inadequately investigated the case; and
(3) he disagreed with Kaiser’s overall approach to de-
fending him. As we previously explained, these reasons
were facially valid; thus, the trial court needed to ex-
plore them and, because Carlson also requested a con-
tinuance, balance them against the reasons for not granting
Carlson’s motion. The trial judge, however, made no
effort to do so.
  In casting Carlson’s arguments aside, the judge may
have been attempting to follow precedent on appointed
counsel and the right to effective assistance of counsel,
which sets higher standards for relief than the right to be
represented by retained counsel of choice. For instance, a
total breakdown in communication justifies the appoint-
ment of new counsel for an indigent defendant. Harris,
394 F.3d at 552. However, even if a breakdown in com-
munication is not so severe as to implicate the right to
counsel, it may still provide a reasonable justification for
a substitution of retained counsel and a continuance.
And, while an attorney’s strategic decisions are not defi-
cient performance under the test for ineffective assistance
of counsel, Strickland, 466 U.S. 668, 688-89 (1984), a signifi-
cant dispute about strategy may implicate a defendant’s
right to counsel of choice. Thus, when Carlson presented
No. 07-3428                                             17

his arguments, the trial judge erred in dismissing them
as irrelevant to his constitutional rights.
  In sum, the trial judge ignored the presumption in
favor of Carlson’s counsel of choice and insisted upon
expeditiousness for its own sake. The judge made no
effort to ascertain the facts and follow up on Carlson’s
reasonable justifications for seeking a substitution. The
reasons the judge did cite for denying a continuance
were weak, and he made no attempt to balance them
against the effect of Kaiser’s possible failings and
Carlson’s interest in having his attorney of choice defend
him against serious charges. Thus, the trial court’s denial
of Carlson’s motion for substitution and a continuance
was arbitrary and in violation of the Sixth and Fourteenth
Amendments.
  Finally, we analyze whether the denial of Carlson’s
right to retain his chosen counsel had an “adverse effect”
on the presentation of his case. Under Rodriguez, such
adverse effect
   means an identifiable difference in the quality of
   representation between the disqualified counsel and
   the attorney who represents the defendant at trial. The
   difference does not have to be great enough to under-
   mine confidence in the outcome—that is the stand-
   ard under Strickland—but it must be enough to show
   that the defendant’s representation suffered a set-
   back from the disqualification.
382 F.3d at 675 (internal citations omitted). Rodriguez
went on to say that adverse effect might be shown if, for
example, “counsel failed to pursue a reasonable alter-
native defense strategy.” Id.
18                                            No. 07-3428

  Our case easily meets this standard because Kaiser
failed to pursue the sensible defense strategy advocated
by Shellow. In the motion for substitution and in her
statement to the court, Shellow explained that she
wished to explore Gino’s motives for making the allega-
tion. She planned to engage an expert (whom she identi-
fied by name) regarding a number of questions, in-
cluding issues raised by Gino’s reporting of the assaults
to Rawhide staff four to six years after they allegedly
occurred. Shellow also wanted to present evidence that
Gino was aware that Carlson had previously been con-
victed of child sexual abuse (and thus knew that a
similar allegation against him would be taken seriously)
and that Gino had previously denied any sexual contact
with Carlson. This strategy would have forced Carlson
to divulge the nature of his prior conviction—which is
why Kaiser did not want to pursue it—but it also
would have elicited Gino’s prior inconsistent statement
and undermined his credibility. Because this was a rea-
sonable alternative defense, the trial court’s denial of
Carlson’s right to retain his chosen counsel had an ad-
verse effect on the presentation of his defense. For these
reasons, Carlson is entitled to his release from custody
unless the State gives him a new trial with 180 days.
  For these reasons, the judgment of the district court
granting petitioner’s application for a writ of habeas
corpus is A FFIRMED.




                   USCA-02-C-0072—5-19-08
