proceeding.'" Id. (quoting Saffle, 494 U.S. at 495, which in turn quotes Teague, 489 U.S. at 311). As Graham states, "whatever the precise scope of this exception, it is clearly meant to apply only to a small core of rules requiring 'observance of those procedures that are implicit in the concept of ordered liberty.'" Id. (quoting Teague, 489 U.S. at 311; internal quotations omitted). In other words, the exception applies only to those "bedrock procedural elements" which are "central to an accurate determination of guilt or innocence." Teague, 489 U.S. at 311, 313.
Invocation of this exception "must be consistent with the recognition that 'application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.'" Sawyer v. Smith, 497 U.S. 227, 242, 111 L. Ed. 2d 193, 110 S. Ct. 2822 (1990) (quoting Teague, 489 U.S. at 309). Thus, the "'costs imposed upon the State[s] by retroactive application of new rules of constitutional law on habeas corpus . . . generally far outweigh the benefits of this application.'" Id. (quoting Solem v. Stumes, 465 U.S. 638, 654, 79 L. Ed. 2d 579, 104 S. Ct. 1338 (1984)). Therefore, the exception is further limited only "to those new procedures without which the likelihood of an accurate conviction is seriously diminished." Teague, 489 U.S. at 313.
In light of these principles, the Court concludes that the second exception is inapplicable to permit retroactive application of the automatic reversal rule. First, despite the pronouncements of Cuyler and Wood, the rule was only recently applied in the Second Circuit -- compare United States v. Edwardo-Franco, 885 F.2d 1002, 1007 (2d Cir. 1989) (applying different rule in 1989), with Strouse, 928 F.2d at 555 (recognizing viability of automatic reversal rule in 1991) -- suggesting that the rule is not one of the "bedrock procedural elements" of our system of jurisprudence. Cf. Cain v. Redman, 947 F.2d 817, 820-22 (6th Cir. 1991) (holding that rule invalidating jury instructions as Constitutionally infirm because they diluted presumption of innocence and affected allocation of burdens of proof was "not within the narrow category of fundamental bedrock procedural elements that come within the exception"), cert. denied, 503 U.S. 922, 112 S. Ct. 1299, 117 L. Ed. 2d 521 (1992); Williams v. Chrans, 945 F.2d 926 (7th Cir. 1991) (rule of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), prohibiting race-based jury selection, "does not appear . . . to alter an understanding of a 'bedrock procedural element'"), cert. denied, 112 S. Ct. 3002 (1992).
Second, a number of circuits in post-Cuyler and Wood decisions have explicitly declined to apply the rule. See United States v. Winkle, 722 F.2d 605, 611-12 (10th Cir. 1983) ("While the record thus left this serious question [of waiver of a possible conflict] open without a discussion by the court with the defendant, and without a clear determination on the conflict of interests question, we cannot agree that reversal and a new trial are now mandated"); Brien v. United States, 695 F.2d 10, 15 n. 10 (1st Cir. 1982) (holding that while "some courts, looking to Wood's language stating that a reversal is 'mandated' when the required inquiry is not conducted[,] have assumed that the trial court's failure to inquire about potential conflicts in and of itself requires reversal of the conviction," this result is not warranted here) (citations omitted); United States v. Knight, 680 F.2d 470, 470 (6th Cir. 1982) (stating that sufficient conflict existed to require inquiry, but rather than automatically reversing for trial court's failure to do so, ordering remand), cert. denied, 459 U.S. 1102, 74 L. Ed. 2d 950, 103 S. Ct. 723 (1983); Hamilton v. Ford, 969 F.2d 1006, 1011-12 (11th Cir. 1992) (holding that automatic reversal occurs only where trial court fails to conduct an inquiry when faced with a timely objection to a possible conflict), cert. denied, 507 U.S. 1000, 113 S. Ct. 1625, 123 L. Ed. 2d (1993); see also United States v. Marrera, 768 F.2d 201, 205 (7th Cir. 1985), cert. denied, 475 U.S. 1020, 89 L. Ed. 2d 321, 106 S. Ct. 1209 (1986). This continuing disagreement is additional evidence that the rule does not fall within the exception's "small core of rules requiring observance of those procedures that are implicit in the concept of ordered liberty." Graham, 113 S. Ct. at 903 (internal quotation marks omitted).
Third, since the automatic reversal rule overturns otherwise perfectly valid determinations of guilt without the need to demonstrate an adverse affect of any possible conflict on counsel's performance or dereliction in the adjudicatory process, in many cases the rule does not "seriously" increase the likelihood of accurate convictions. Teague, 489 U.S. at 313. Indeed, as discussed more fully below, even after full hearing there exists no evidence in the record that Sparrow's performance was defective as a result of the purported conflict of interest. See infra Part II.C. In light of the truly overwhelming proof of Moseley's guilt, the application of the rule here to reverse his conviction would not serve to advance significantly the accuracy of that determination.
Fourth, the mere fact that the rule touches on a defendant's right to representation at trial does not require the conclusion that it falls within the exception, for if this fact alone sufficed, then many rules or proposed rules would avoid the dictates of Teague. Unlike other rules pertaining to the Sixth Amendment which seek to ensure competent performance of counsel and prejudice-free outcomes, see, e.g., Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), the automatic reversal rule is "prophylactic" in nature, Brien, 695 F.2d at 15 n.10, requiring reversal regardless of counsel's performance. Therefore, blind application of the exception to rules pertaining to ineffective representation would fail to distinguish between "bedrock" rules and other rules, thereby greatly expanding the limited nature of the exception. Moreover, different rules touching upon equally fundamental concepts do not automatically fall within the exception. See, e.g., Skelton v. Whitley, 950 F.2d 1037 (5th Cir.) (finding no retroactive application of rule striking Constitutionally infirm "reasonable doubt" jury instruction because it did not implicate a "bedrock procedural element"), cert. denied, 113 S. Ct. 102 (1992); Cain, 947 F.2d at 820-22 (concluding that rule prohibiting use of jury instruction which diluted presumption of innocence and affected allocation of burdens of proof should not be given retroactive application).
Finally, retroactive application of the automatic reversal rule would undoubtedly affect a great number of otherwise final convictions because of trial courts' reliance on then-prevailing caselaw that no duty existed to inquire into possible conflicts absent objection. Hence, reversal of decades-old murder and other convictions for prisoners serving life sentences, for example, would occur with little chance of retrial. As Justice Harlan stated in Mackey v. United States, 401 U.S. 667, 28 L. Ed. 2d 404, 91 S. Ct. 1160 (1971), a decision relied upon heavily by the Teague Court:
No one, not criminal defendants, not the judicial system, not society as a whole is benefitted by a judgment providing that a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation.