Actual prejudice must be shown." Haggard v. State, 550 F.2d 1019 (5th Cir. 1977). However it is clear that a defendant's Sixth Amendment right to the effective assistance of counsel may be denied where one attorney represents two co-defendants whose interests are in conflict.

We see no reason to disturb the district court's finding that petitioners received effective legal assistance at their trial, especially since appellants make no adequate allegation of specific prejudice resulting from Robinson's supposed illness. See United States v. Gray, 565 F.2d 881, 887 (5th Cir. 1978); Haggard v. Alabama, 550 F.2d 1019, 1022 (5th Cir. 1977); Herring v. Estelle, 491 F.2d 125, 128-29 (5th Cir. 1974). Although appellants do contend that Robinson declined to call out-of-state witness because he wanted to shorten the trial for his health's sake, appellants fail to state what helpful testimony that witness could have provided.

This allegation is a bare assertion unsupported by any evidence and will not be given further consideration by this court. See Haggard v. Alabama, 550 F.2d 1019 (5th Cir. 1977). The district court, in disposing of petitioner's instant fair cross-section claim, correctly concluded "that the factual information regarding the composition of Petitioner's traverse jury pool has been in existence at all times shortly prior to and subsequent to Petitioner's trial and conviction in the Superior Court of Muscogee County on March 9, 1978."

It should be noted, however, that in the particular setting of habeas corpus evidentiary hearings, courts have considered the testimony of trial judges. See Haggard v. Alabama, 550 F.2d 1019, 1022 (5th Cir. 1977); Williams v. Beto, 354 F.2d at 703; United States v. Follette, 410 F.2d 1276, 1278 (2d Cir. 1969). We have found no denial of an application for writ of habeas corpus reversed because of the admission of such testimony.

It is clear, moreover, that Martinez did not waive his right to such assistance: All of the cases that have been brought to our attention in which this court did not find ineffective assistance of counsel where a defense attorney had previously represented a witness, Haggard v. Alabama, 550 F.2d 1019 (5th Cir. 1977); United States v. James, 505 F.2d 898 (5th Cir.), cert. denied, 421 U.S. 1000, 95 S.Ct. 2397, 44 L.Ed.2d 667 (1975); United States v. Cochran, 499 F.2d 380 (5th Cir. 1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 825 (1975); Nelson v. United States, 415 F.2d 483 (5th Cir. 1969), cert. denied, 396 U.S. 1060, 90 S.Ct. 751, 24 L.Ed.2d 754 (1970); Harrison v. United States, 387 F.2d 614 (5th Cir. 1968), are easily distinguishable. All were decided prior to United States v. Alvarez, 580 F.2d 1251 (5th Cir. 1978), which relying on Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), held that if a defendant's attorney had an actual conflict of interest, no prejudice need be shown, and all rested at least in part on the absence of prejudice to the defendant.

We interpret counsel to mean not errorless counsel and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." Also, see Herring v. Estelle, 491 F.2d 125, 127 (5 Cir. 1974); and Haggard v. Alabama, 550 F.2d 1019, 1023 (5 Cir., 1977). The "effective assistance of counsel" cases relied on by the majority are distinguishable on the facts from the instant case.

The district court found that the state trial judge told Esquivel that he had a right to appeal. Although the state trial court was not required to so inform Esquivel, Loter v. Estelle, 546 F.2d 151 (5 Cir. 1977), we think that the information it gave him is sufficient to bar habeas relief. We have previously held that a defendant who takes a state coram nobis writ, which is treated as a statutory appeal, may not claim a sixth amendment deprivation because his counsel did not tell him that he had a right to appeal. Haggard v. Alabama, 550 F.2d 1019 (5 Cir. 1977). The fact that the state trial court informed Esquivel of his right to appeal reduces the default, if any, of his appointed counsel to harmless error.

Since incompetence confined to one aspect of a case, as it is here, cannot generally be said to render the entire proceedings a "farce and mockery of justice," and, since appellant's claim has merit when considered under the "reasonably competent assistance" rule, we think that this appeal is an appropriate one in which to reexamine our adherence to the "farce and mockery" standard. Marzullo v. Maryland, 561 F.2d 540, 543, 544-45 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978); United States v. Bad Cob, 560 F.2d 877, 880 (8th Cir. 1977); Cooper v. Fitzharris, 551 F.2d 1162, 1166 (9th Cir. 1977); Haggard v. Alabama, 550 F.2d 1019, 1022 (5th Cir. 1977); Ortiz v. Sielaff, 542 F.2d 377, 379 (7th Cir. 1976); Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974); United States v. DeCoster, 159 U.S.App.D.C. 326, 331, 487 F.2d 1197, 1202 (1973); Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970) ( en banc). The Second and Tenth Circuits still adhere to the "farce and mockery of justice" standard, although the Second indicates that it would be willing to reexamine its position in an appropriate case.

Some confusion in the area may have resulted from the seeming tendency of some decisions to use the terms "conflict" and "prejudice" interchangeably. See, e. g., Haggard v. Alabama, 550 F.2d 1019, 1022 (5th Cir. 1977); United States v. Wayman, 510 F.2d 1020, 1026 (5th Cir. 1975); United States v. James, 505 F.2d 898, 900 (5th Cir.), cert. denied, 421 U.S. 1000, 95 S.Ct. 2397, 44 L.Ed.2d 667 (1975). IV.

The judicial weather forecast was apparently in error. In Haggard v. State of Alabama, 5 Cir. 1977, 550 F.2d 1019, 1023, we indicated that an indigent convicted in 1968 had a right to be told of his opportunity to appeal, and cited Lumpkin, but Thomas and Simpson required this much. See also Dixon v. Caldwell, 5 Cir. 1972, 471 F.2d 767 (failure to acknowledge petitioner's request for an appeal on his behalf).