998 P.2d 753 (2000)
166 Or. App. 396
In the Matter of the Compensation of Darlene J. Molena, Claimant.
JELD-WEN, INC., Petitioner,
v.
Darlene J. MOLENA, Respondent.
(97-08181; CA A105255).
Court of Appeals of Oregon.
Argued and Submitted October 27, 1999.
Decided April 5, 2000.
Travis L. Terrall, Portland, argued the cause for petitioner. With him on the brief was Scott H. Terrall & Associates.
Mustafa Kasubhai argued the cause for respondent. With him on the brief was Kasubhai & Sanchez.
Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.
KISTLER, J.
Employer seeks review of an order of the Workers' Compensation Board holding that claimant suffered a compensable injury. We affirm.
Claimant was employed by Jeld-Wen. In her position, she worked with glue, alcohol, and other chemicals. On July 23, 1997, the glue overheated. Claimant and two of her coworkers became "headachy" and experienced "a feeling of nausea[.]" When the workers complained to the manager, he "suggested *754 that [they] pour lacquer thinner * * * and clean the * * * glue rolls, because the glue was setting up." When the lacquer thinner was put on the rolls, the fumes caused at least one worker to vomit and the other workers to start choking. Claimant experienced watering eyes, burning in her chest, choking, and difficulty breathing. A fan was placed in the area to blow the fumes away, and claimant continued to work. Within half an hour, claimant passed out and was carried outside. A coworker took her to the hospital for treatment. Claimant sought compensation for a workplace injury.
A week later, claimant went to the hospital with continued complaints of chest discomfort and shortness of breath. Her chest x-ray showed evidence of a preexisting chronic obstructive pulmonary disease. At the hospital, Dr. Brunswick diagnosed claimant's condition as "shortness of breath secondary to chronic obstructive pulmonary disease." Employer denied the compensability of claimant's current medical condition on the ground that it was not a result of the July 23 industrial injury and did not arise out of or in the course of employment.
Claimant sought a hearing. The ALJ found:
"(1) The claimant's exposure to vapors from the glue machin[e] in July, 1997 was a discrete and specific event. (2) The discrete and specific event experienced by the claimant in July, 1997 combined with a pre-existing respiratory condition and was the major contributing cause of the claimant's need for treatment of the combined condition."
Based on those and other findings, the ALJ concluded that claimant's condition was an injury rather than an occupational disease. The ALJ also explained why claimant's exposure to the fumes was the major contributing cause of her need for treatment of the combined condition. He reasoned:
"[C]laimant had no significant breathing symptoms prior to July 23, 1997, despite her underlying condition. * * * [T]he evidence establishes the quantitative level of her exposure as relatively dramatic and substantial, certainly more than innocuous. The material to which the claimant was exposed apparently carries a warning of irritative effects from exposure to the fumes. Following her exposure the claimant became symptomatic as far as breathing difficulty. Dr. Bardana has reported that the claimant suffered a transient respiratory irritation and vasovagal syncope as a result of her employment exposure. Dr. Panossian, a pulmonologist, has stated that the claimant's work exposure precipitated her symptoms that required treatment. There is absolutely no reason to believe that the claimant's symptoms and need for treatment would have occurred had she not experienced the relatively substantial exposure to fumes on July 23, 1997. The claimant's lung function, despite her underlying condition, was not that significant in terms of symptom instability. Although a precipitating cause is not necessarily the major contributing cause, in my opinion all the above factors prove the exposure in this case was more than a precipitating cause, it was in fact the primary cause of the claimant's need for treatment of her combined condition."
(Emphasis in original.) The Board adopted the ALJ's findings and order.
On appeal, employer raises three arguments. First, it argues that the Board erred because ORS 656.802(1)(a)(A) requires, as a matter of law, that claimant's lung condition be treated as an occupational disease rather than as an injury. Our recent decision in Weyerhaeuser Co. v. Woda, 166 Or.App. 73, 998 P.2d 226 (2000), resolves that issue adversely to employer. We held that exposure to fumes, vapors, and the like may result in an injury as well as an occupational disease.
Second, employer contends that, even if claimant's condition could be an injury, the evidence shows that her condition arose gradually and was thus an occupational disease. There is substantial evidence in the record, however, to support the Board's finding that claimant's condition occurred suddenly. See Burns v. SAIF Corp., 116 Or.App. 498, 500, 841 P.2d 696 (1992), rev. den. 315 Or. 442, 847 P.2d 409 (1993); Morrow v. Pacific University, 100 Or.App. 198, 200, 785 *755 P.2d 787 (1990). Although employer views the historical facts differently, the Board's findings of historical fact are supported by substantial evidence. They effectively resolve employer's claim that claimant's condition is an occupational disease rather than an injury. See id.
Finally, employer argues that the Board erred in finding that claimant's exposure to the fumes at work was the major contributing cause of her need for medical treatment. The Board's finding is supported by substantial evidence, as the portion of the ALJ's opinion quoted above demonstrates. See Dietz v. Ramuda, 130 Or.App. 397, 402, 882 P.2d 618 (1994), rev. dismissed 321 Or. 416, 898 P.2d 768 (1995) (stating standard of review).
Affirmed.


428 P.2d 706 (1967)
Clara HAMILTON and Lowell Wade, Plaintiffs in Error,
v.
Eugene SMITH, Tommy Pitman and Hallie Wade, Defendants in Error.
No. 21581.
Supreme Court of Colorado, In Department.
June 12, 1967.
*707 Schmidt & Schmidt, Springfield, for plaintiffs in error.
Allott & Rogers, Lamar, for defendants in error.
PRINGLE, Justice.
Plaintiffs in error were plaintiffs in the trial court and defendants in error were defendants there. They will be hereinafter referred to as they appeared in the trial court or by name.
The plaintiffs brought an action contending that by reason of defendants' negligence a wheat crop owned by the plaintiffs was destroyed by fire, to their damage in the amount of $16,859. A directed verdict was granted for defendants by the trial judge at the close of the plaintiffs' case. Plaintiffs are here on writ of error. On this posture of the case, we are required to examine the evidence and the record before us in the light most favorable to the plaintiffs since the directed verdict was granted against them. Nettrour v. J. C. Penney Co., 146 Colo. 150, 360 P.2d 964.
Viewing the testimony on behalf of the plaintiffs in that light, we find that on June 28, 1958 the defendants were operating a truck engaged in harvesting the plaintiffs' wheat. A fire broke out in the field either near or under the truck, which fire consumed the wheat in question. There was a sudden gust of wind which occurred simultaneously with the outbreak of the fire and which quickly spread the fire. There was also high stubble in the field which could, on contact with a hot exhaust pipe, become ignited. The truck drivers had been told *708 by one of the plaintiffs to stomp down the stubble whenever the truck stopped. It was common practice in the area to run the truck through the stubble when harvesting. There was no evidence that the stubble had not been stomped down or even that the truck was completely stopped at the time the fire started. Nor was there any claim of mechanical difficulties in the truck. At the time the fire began, there were other people in close proximity to the place where the fire started.
In our view, the trial court correctly found that plaintiffs had not made out a prima facie case. The mere fact that a fire occurred, under the circumstances here, was not in and of itself proof of negligence on the part of the defendants. The mere happening of an accident does not raise a presumption of negligence. Pence v. Chaudet, Colo., 428 P.2d 705 (June 12, 1967); City of Grand Junction v. Lashmett, 126 Colo. 256, 247 P.2d 909; Maloney v. Jussel, 125 Colo. 125, 241 P.2d 862.
The burden was on the plaintiffs to produce some proof, other than pure speculation, not only that the truck started the fire, but that there was some negligence on the part of the defendants. This they failed to do.
Nor can a claim be successfully made that the doctrine of res ipsa loquitur applies here. For that doctrine to apply, the instrumentality causing the injury must be under the exclusive control of the defendant and the accident must be such as would, in the ordinary course of events, not occur without negligence. The res ipsa loquitur doctrine does not apply where on proof of the occurrence alone, without more, the matter still rests on conjecture, or the accident is just as reasonably attributable to other causes as to the negligence of the defendant. Zimmerman v. Franzen, 121 Colo. 574, 220 P.2d 344. See also, Kendall v. Fordham, 79 Utah 256, 9 P.2d 183.
It is also contended by the plaintiffs that the defendants should have attempted to extinguish the fire. However, there is no evidence which would indicate such efforts would have been to any avail. As a matter of fact, the evidence on behalf of the plaintiff is that as soon as the fire started the wind swept it into a conflagration. Under the circumstances, we can find no breach of duty on the part of defendants for failure to attempt to extinguish the fire.
The judgment is affirmed.
MOORE, C. J., and DAY, J., concur.


                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-2109
                                   ___________

Debbie S. Yarbrough,                   *
                                       *
           Appellant,                  *
                                       *
David K. Yarbrough,                    * Appeal from the United States
                                       * District Court for the
           Plaintiff,                  * Eastern District of Missouri.
                                       *
      v.                               *      [UNPUBLISHED]
                                       *
American States Preferred Insurance    *
Company,                               *
                                       *
           Appellee.                   *
                                  ___________

                             Submitted: February 16, 2001
                                 Filed: February 27, 2001
                                  ___________

Before BOWMAN, HEANEY, and LOKEN, Circuit Judges.
                          ___________

PER CURIAM.

       Debbie S. Yarbrough, seeking additional coverage for bodily injuries she
sustained in an automobile accident, contends that she, like her husband, David
Yarbrough, is insured under the underinsured motorist coverage of a commercial policy
issued by American States Preferred Insurance Company insuring "David Yarbrough
dba Yarbrough Company." The Underinsured Motorist Coverage endorsement of this
policy excludes underinsured motorist coverage for "bodily injury sustained by any
person while occupying or struck by any vehicle owned by you or any family member
that is not a covered auto." When the accident in which she suffered bodily injuries
occurred, Mrs. Yarbrough was occupying a 1993 Dodge Intrepid. This auto was not
a covered auto under the commercial policy. The endorsement also provides an
exception to the exclusion: "However, this exclusion does not apply to you." The
policy defines "you" as the named insured. The District Court1 determined that the
policy is unambiguous and that Mrs. Yarbrough was not a named insured on the policy
at the time of the accident. Accordingly, the court concluded that coverage of her claim
for bodily injury is not provided by the exception to the bodily-injury exclusion, and
granted summary judgment in favor of American States. Mrs. Yarbrough appeals.

      For reversal, Mrs. Yarbrough makes several arguments, all attacking the District
Court's conclusion that she was not a named insured on the policy in question. Having
reviewed the case and considered all of her arguments, we are satisfied that the District
Court correctly entered summary judgment for American States. No error of fact or
law appears, and an opinion by this Court would add nothing of substance to the well-
reasoned opinion of the District Court.

       Based on the reasoning of the District Court, with which we entirely agree, we
affirm. See 8th Cir. R. 47B.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

      1
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
                                           -2-


                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 VERONICA MONTOYA,
 INDIVIDUALLY AND ON BEHALF OF                  §               No. 08-12-00070-CV
 THE ESTATE OF JESSICA MONTOYA,
 DECEASED,                                      §                   Appeal from

                        Appellant,              §                120th District Court

 v.                                             §             of El Paso County, Texas

 NICHIRIN-FLEX U.S.A., INC.,                    §             (TC # 2011-DCV-10027)

                        Appellee.               §

                                        JUDGMENT

       The Court has considered this cause on the record and concludes there was no error in the

judgment. We therefore affirm the judgment of the court below. We further order that Appellee

recover from Appellant and its sureties, if any, see TEX.R.APP.P. 43.5, on the judgment and all

costs, for which let execution issue. This decision shall be certified below for observance.

       IT IS SO ORDERED THIS 7TH DAY AUGUST, 2013.

                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.


79 F.3d 441
Pamela Lynn PERILLO, Petitioner-Appellant,v.Gary L. JOHNSON, Director, Texas Department of CriminalJustice, Institutional Division, Respondent-Appellee.
No. 94-20759.
United States Court of Appeals,Fifth Circuit.
March 21, 1996.

Gerard A. Desrochers, Baker & Botts, Houston, TX, Robin Elizabeth Curtis, Houston, TX, for petitioner-appellant.
Dana Emmert Parker, Assistant Attorney General, Dan Morales, Attorney General, Margaret Portman Griffey, Office of the Attorney General for the State of Texas, Austin, TX, for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:

1
Pam Perillo was found guilty of murder and sentenced to death by a Texas court.   She filed a federal petition for writ of habeas corpus, 28 U.S.C. § 2254, asserting that her conviction was wrongful because her attorney was simultaneously representing a key prosecution witness.1  The federal district court refused to allow any discovery or an evidentiary hearing and granted summary judgment denying the writ.   Perillo now appeals the dismissal of her habeas corpus petition.   Finding that the district court erred in refusing to allow discovery and to hold an evidentiary hearing, we vacate the judgment of the district court and remand the case for appropriate discovery and an evidentiary hearing.

I. BACKGROUND

2
Perillo was initially convicted of capital murder and sentenced to death in 1981 for her part in the murders of Robert Banks and Bob Skeens.   After that conviction was reversed due to an error during voir dire, Perillo v. State, 656 S.W.2d 78 (Tex.Crim.App.1983), she was convicted a second time in 1984 and again sentenced to death.2  Two other people, Linda Fletcher and Mike Briddle, were also involved in the same murders.   Fletcher was initially charged with capital murder for killing Banks and Skeens.   However, the state later lowered the charge to aggravated robbery.   Fletcher was convicted of aggravated robbery and sentenced to five years probation;  she has never been tried for the murders of Banks or Skeens.   Briddle was convicted of capital murder and sentenced to death.   He has since been executed by the State of Texas.

3
Jim Skelton was Perillo's attorney during her second trial.3  Skelton had also been Fletcher's attorney in 1980 when she was indicted for the capital murder of Banks and Skeens, and he continued to represent her during her trial for aggravated robbery.   When Fletcher later testified against Briddle at his trial, Skelton, as her attorney, negotiated "use immunity" for her, which meant that nothing she said during her testimony in the Briddle trial could be used against her.  Ex Parte Shorthouse, 640 S.W.2d 924, 928 (Tex.Crim.App.1982).   The state, however, was free to try her using information it already possessed.

4
On October 19, 1984, the judge in Perillo's case issued a subpoena to compel Fletcher, who was living in California, to return to Texas and testify in Perillo's second capital murder trial.   Fletcher would not voluntarily return to Texas, so a hearing was set in California to determine whether Fletcher would be forced to return.   Fletcher called Skelton and asked him to come to California.   On November 5, 1984, the first day of testimony in Perillo's case, Skelton traveled to California to represent Fletcher in her attempt to avoid the subpoena.

5
The record is silent as to what happened in California.   The only thing we know for certain is that after Skelton flew to California to represent Fletcher, she was granted transactional immunity for the murders of Skeens and Banks and she returned to Texas to testify.   This means that she can never be prosecuted for the murders.  Shorthouse, 640 S.W.2d at 928.   After she was granted transactional immunity, the California court order Fletcher to return to Texas to testify against Perillo.   Perillo was convicted and sentenced to death.

6
II. THE NEED FOR DISCOVERY AND EVIDENTIARY HEARING

A. Discovery and Evidentiary Hearing

7
When there is a "factual dispute, [that,] if resolved in the petitioner's favor, would entitle [her] to relief and the state has not afforded the petitioner a full and fair evidentiary hearing," a federal habeas corpus petitioner is entitled to discovery and an evidentiary hearing.  Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995);  see Young v. Herring, 938 F.2d 543, 560 (5th Cir.1991), cert. denied, 503 U.S. 940, 112 S.Ct. 1485, 117 L.Ed.2d 627 (1992);  Rule 6 of the Rules Governing § 2254.   However, the discovery and evidentiary hearing are limited to the factual dispute;  we have made clear that Rule 6 "does not authorize fishing expeditions."  Ward, 21 F.3d at 1367.   A habeas petitioner must make specific allegations;  "conclusory allegations unsupported by specifics," or "contentions that in the face of the record are wholly incredible" will not entitle one to discovery or a hearing.  Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977).

8
Perillo sought both discovery and an evidentiary hearing during her federal habeas corpus proceeding, but both were denied.   The district court erred because Perillo alleged that Skelton was representing Fletcher in California, creating an actual conflict of interest that adversely affected his representation of her.   As discussed below, this is a factual dispute which, if resolved in her favor, would entitle her to relief and there are no state factfindings on the issue that are entitled to the presumption of correctness.

9
In her habeas corpus petition, Perillo alleges that "Skelton represented Fletcher in California in a hearing to resist the State's subpoena for Fletcher to testify at Ms. Perillo's trial as the chief prosecution witness.   Later, during Ms. Perillo's trial, Skelton flew to California to explain to Fletcher the legal proceedings in which she would testify against Ms. Perillo."  (emphasis in original).

10
In addition, Perillo provided an affidavit from Carolyn Clause Garcia (then an attorney in private practice in Houston) who stated that "[d]uring the pendency of the second Perillo trial, Jim Skelton flew to California to represent Linda Fletcher in matters regarding the State's subpoena for [Fletcher's] appearance and testimony.   I thought it odd and an additional conflict of interest for [Skelton] to be involved in the representation of Fletcher in any fashion under the circumstances."

11
Skelton himself admits that he represented Fletcher at her hearing in California.   He stated in his first affidavit that he "represented Ms. Fletcher ... in the California hearing to resist the Texas subpoena for Ms. Fletcher to testify against Ms. Perillo."   Contrary to the State's assertions, Skelton never withdrew or corrected his statement that he represented Fletcher in California.

12
The period of time when Skelton was in California is a black-hole;  we have no information about what happened at the hearing.   There is no evidence of who negotiated the immunity for Fletcher and exactly what role, if any, Skelton had in the hearing.   There is no transcript from the California hearing.   The evidence is limited to (1) Skelton's affidavits in the state habeas proceeding, none of which squarely address the issue of his conduct in California, and (2) his statement at trial that he went to California at Fletcher's request.   Perillo has not had the opportunity to depose or cross-examine Skelton.   Perillo has not been able to depose or cross-examine Fletcher.   Perillo has not even been able to get Fletcher's affidavit.   We find it disturbing that Perillo's chief obstacle in obtaining information from Fletcher is her own trial counsel, Skelton.4  When Perillo's habeas counsel sought information from Fletcher in 1992, they were informed that Skelton was representing her and that all communications must be through him.   Despite repeated requests, no meeting was ever allowed and Perillo's counsel have never interviewed Fletcher.   Therefore, Perillo has brought forth, as best she can, facts supporting her allegation that Skelton had a conflict of interest that adversely affected her.

13
Perillo is entitled to an evidentiary hearing where she can examine Skelton and Fletcher and find out what happened in California.   This should not be a wide-ranging fishing expedition, but a brief adversarial hearing concerning a discrete time period.5  We express no view on what conclusion should be reached once such a hearing is held.

B. Presumption of Correctness

14
When a state court has made findings of fact after a full and fair hearing, federal habeas corpus courts grant those factfindings a presumption of correctness and do not relitigate those facts.  28 U.S.C. § 2254.   However, not all items contained in the findings of fact are questions of fact entitled to the presumption of correctness.   Certain issues, including determinations about the effectiveness of counsel's assistance, involve mixed questions of law and fact, and are reviewed de novo.  Koch v. Puckett, 907 F.2d 524, 527 (5th Cir.1990);  Carter v. Collins, 918 F.2d 1198, 1202 (5th Cir.1990).   However, even if an issue is a mixed question of law and fact, state court background factfindings are subject to the deference requirement of § 2254(d).  Carter, 918 F.2d at 1202.   See Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984);  Loyd v. Smith, 899 F.2d 1416, 1425 (5th Cir.1990).   Of course, if the state habeas court did not make factfindings on an issue, the federal habeas court is free to examine the issue unconstrained.  Armstead v. Scott, 37 F.3d 202, 209 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1709, 131 L.Ed.2d 570 (1995).

15
The state habeas corpus court found that there was "no conflict between Skelton and Perillo and no adverse effect upon Perillo's case."   Those findings are mixed questions of law and fact;  therefore, they are subject to de novo review and are not entitled to any presumption of correctness.   The state habeas corpus court did not make any background findings about what happened in California and Skelton's involvement, if any, in that hearing.6  Therefore, on this issue, there are no factfindings entitled to a presumption of correctness.

16
Moreover, even if there had been state court factfindings on this issue, they would not be entitled to the presumption of correctness.   State court habeas factfindings are presumed correct only when there has been a full and fair hearing.  28 U.S.C. § 2254(d);  Armstead, 37 F.3d at 207.   A full and fair hearing does not necessarily mean a live hearing.   In the proper circumstances, we have afforded the presumption of correctness to "paper hearings."7  Id. at 207.   However, "it is necessary to examine in each case whether a paper hearing is appropriate to the resolution of the factual dispute underlying the petitioner's claim."  May v. Collins, 955 F.2d 299, 312 (5th Cir.1992).

17
In Nethery v. Collins, 993 F.2d 1154, 1157 n. 8 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1416, 128 L.Ed.2d 87 (1994), we held that, because the state habeas judge was not the judge at the state trial, the paper hearing was not an adequate and fair hearing.   In Armstead, we found that a paper hearing was adequate because, "[u]nlike the scenario in Nethery, the trial judge in Armstead's case who made the factual finding with regard to the conflicting affidavits via the 'paper hearing' was the same judge who presided over Armstead's guilty plea.   The judge had the opportunity to fully assess Armstead during his plea process and determine his credibility then."  Armstead, 37 F.3d at 208.   See Vuong v. Scott, 62 F.3d 673, 683-84 (5th Cir.)  (same judge--paper hearing accorded presumption of correctness), cert. denied, --- U.S. ----, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995);  Amos v. Scott, 61 F.3d 333, 347 (5th Cir.)  (same judge--paper hearing accorded presumption of correctness), cert. denied, --- U.S. ----, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995);  Sawyers v. Collins, 986 F.2d 1493, 1505 (5th Cir.)  (same judgepaper hearing accorded presumption of correctness), cert. denied, 508 U.S. 933, 113 S.Ct. 2405, 124 L.Ed.2d 300 (1993).

18
In the instant case, the judges were different.   The judge in Perillo's second capital murder trial was the Honorable Woody Densen, while the state habeas corpus judge was the Honorable Curt F. Steib.   Judge Steib conducted only a paper hearing in the habeas corpus proceeding.   Because the judge in the state habeas corpus proceeding was not the trial judge, he could not "compare the information presented in the various affidavits against his own firsthand knowledge of the trial."  May, 955 F.2d at 314.   We do not suggest that a full and fair hearing cannot be had any time the state habeas judge is different from the trial judge.   In our case-by-case review, the identity of the judges is but one factor to consider, as we explained in Nethery, 993 F.2d at 1157 n. 8.   In this case, Judge Steib could not supplement the affidavits with his own recollection of the trial and Skelton's performance in it.   Thus, there is a danger of "trial by affidavit."  Amos, 61 F.3d at 347.   Therefore, the findings of fact in the state habeas corpus proceeding are not entitled to the § 2254(d) presumption of correctness.

III. CONFLICTS OF INTEREST

19
To determine whether Perillo is entitled to an evidentiary hearing, we must also determine whether her claim that she received ineffective assistance of counsel, if true, would entitle her to relief.  Ward, 21 F.3d at 1367.

20
The Sixth Amendment guarantees a defendant the right to counsel.   This right includes the right to an attorney who is not "burdened by an actual conflict of interest."  Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984).   Normally, to prove ineffective assistance of counsel, a petitioner must prove (1) that his attorney's representation fell below an objective standard of reasonableness and (2) that he was prejudiced.  Id. at 687, 104 S.Ct. at 2064;  Beets v. Scott, 65 F.3d 1258, 1272-73 (5th Cir.1995) (en banc ), cert. denied, ___ U.S. ____, 116 S.Ct. 1547, ___ L.Ed.2d ____ (1996).   In order to prove that he was prejudiced, a petitioner must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."  Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.   This is known as the Strickland standard.

21
We apply a different standard, however, in cases where an attorney's representation of multiple clients created a conflict of interest.   Instead of Strickland, we apply the more lenient Cuyler standard.  Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980);  Beets at 1265.   To prevail on a Cuyler claim, a petitioner need only show that his attorney labored under an actual conflict which adversely affected his lawyer's performance.  Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718;  Beets, 65 F.3d at 1277;  Nealy v. Cabana, 782 F.2d 1362, 1364 (5th Cir.), cert. denied, 479 U.S. 819, 107 S.Ct. 83, 93 L.Ed.2d 37 (1986).   The reasoning behind this policy is clear:  when an attorney represents two clients with opposing interests, the attorney cannot serve both clients adequately.  "Counsel can properly turn in no direction.   He must fail one or do nothing and fail both.   An attorney cannot properly serve two masters."  Beets v. Scott, 65 F.3d at 1270 (internal quotations and citations omitted).

A. Actual Conflict

22
An "actual conflict" exists when an attorney represents two clients whose interests in the outcome of a matter are different.  United States v. Moore, 37 F.3d 169, 173 (5th Cir.1994);  United States v. Carpenter, 769 F.2d 258, 263 (5th Cir.1985);  Mitchell v. Maggio, 679 F.2d 77, 79 n. 4 (5th Cir.)  (citations omitted), cert. denied, 459 U.S. 912, 103 S.Ct. 222, 74 L.Ed.2d 176 (1982).   We have found actual conflict when one client would benefit by a person testifying and one client would be harmed by it.  Nealy, 782 F.2d at 1364.  "The petitioner must specifically identify instances in the record that reflect that his counsel made a choice between possible alternative courses of action such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other."  United States v. Mers, 701 F.2d 1321, 1328 (11th Cir.), cert. denied, 464 U.S. 991, 104 S.Ct. 481, 482, 78 L.Ed.2d 679 (1983);  United States v. Fox, 613 F.2d 99, 102 (5th Cir.1980).

23
Skelton apparently represented Fletcher in California in her attempts to avoid being forced to testify in Texas.   At the same time, he also represented Perillo in her attempts to stop Fletcher from being forced to testify in Texas.   At first glance, there would seem to be no actual conflict between Fletcher's and Perillo's interests (and therefore, no possible Cuyler violation).   Perillo did not want Fletcher to testify and, at least when first subpoenaed, Fletcher did not want to testify.   In fact, Fletcher went so far as to call Skelton and ask him to come to California to help her avoid testifying.   However, while Fletcher may not have wanted to testify initially, it later became in her interest to do so.   Once the offer of transactional immunity was on the table, Fletcher would benefit from testifying.   With only use immunity from the Briddle trial, Fletcher could still be prosecuted for the murders;  with transactional immunity she could not.   Therefore, by accepting the offer of immunity and testifying against Perillo, Fletcher would be in a better position than she would have been by not testifying.   As Fletcher's attorney, Skelton had a duty to advise her of her options.   He had a duty to tell Fletcher that she would improve her legal situation by accepting the immunity and testifying against his other client, Perillo.

24
Skelton's representation of Fletcher was concurrent with his representation of Perillo.   Skelton left Perillo's trial during the State's case in chief and flew to California to represent Fletcher.   Then, only two days later, Fletcher came to testify against Perillo.8

25
While Skelton might have gone to California with the purest of motives and with an intention to keep Perillo's interests in mind, the offer of transactional immunity for Fletcher changed the situation.   After the State of Texas offered Fletcher transactional immunity, Fletcher's and Perillo's interests diverged.   If Skelton recommended to Fletcher that she do what was best for her (accept the immunity and testify), he would hurt Perillo.   Yet, if he honored Perillo's interests and told Fletcher to reject any deal and refuse to testify, he would hurt Fletcher.   This is the exact type of situation where a lawyer "can properly turn in no direction."  Beets, 65 F.3d at 1270.   It is clear that Skelton labored under an actual conflict of interest.

B. Adverse Effect

26
While Strickland requires a showing of actual prejudice, that is, that the result of the trial probably would have been different, United States v. Greig, 967 F.2d 1018, 1024 (5th Cir.1992), Cuyler merely requires that the petitioner show "adverse effect," a lower threshold.   To prove adverse effect, a petitioner need not show that the conflict changed the outcome of the trial.  Nealy, 782 F.2d at 1365.  "Once it has been established that an actual conflict exists, prejudice to the defendant must be presumed."  Mitchell v. Maggio, 679 F.2d 77, 79 (5th Cir.), cert. denied, 459 U.S. 912, 103 S.Ct. 222, 74 L.Ed.2d 176 (1982).   The error cannot be considered harmless, except in the most extraordinary circumstances.  Id.  In Beets, we characterized this standard as a "not quite per se rule of prejudice."  Beets, 65 F.3d at 1269 (internal quotation omitted).

27
In Beets, we had occasion to revisit the conflict of interest area.   The en banc court decided that multi-party representation conflicts (that is, where an attorney has a conflict between two clients) are the only situations where the more lenient Cuyler standard applies.   The Beets court, however, did not alter our law as to what constitutes adverse effect.9  We have said before that to establish adverse effect, a petitioner need only show that his attorney's judgment was fettered by concern over the effect of that decision on the other client's case.  Nealy v. Cabana, 782 F.2d 1362, 1365 (5th Cir.1986).   In Nealy, we found adverse effect because "[t]he lawyer who represented [two clients] was torn in his loyalty and unable to make a decision purely in the interest of one client to whom he owed undivided allegiance."  Nealy at 1366.

28
In Beets, Judge King said that "[t]o establish an adverse effect on the basis of what an attorney failed to do, a defendant must demonstrate that some plausible alternative defense strategy or tactic--'a viable alternative'--might have been pursued."  Beets, 65 F.3d at 1288 (King, J., dissenting).   Other circuits have expressed the standard similarly.  United States v. Rodriguez, 929 F.2d 747, 751 (1st Cir.1991) (the petitioner "must demonstrate that some plausible alternative defense strategy or tactic might have been pursued.");  Church v. Sullivan, 942 F.2d 1501, 1512 (10th Cir.1991) (adverse effect when "a specific and seemingly valid or genuine alternative strategy was available to defense counsel, but it was inherently in conflict with his duties to others.")  (internal quotations omitted);  Winkler v. Keane, 7 F.3d 304, 309 (2d Cir.1993) (a petitioner "must demonstrate that some plausible defense strategy or tactic might have been pursued.")  (internal quotations omitted), cert. denied, --- U.S. ----, 114 S.Ct. 1407, 128 L.Ed.2d 79 (1994);  United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir.1988) (a petitioner "must demonstrate that some plausible defense strategy or tactic might have been pursued."), cert. denied, 492 U.S. 906, 109 S.Ct. 3215, 106 L.Ed.2d 566 (1989);  see Beets, 986 F.2d at 1490 (Higginbotham, J., specially concurring).   Following the approach of our sister circuits, we hold that to show adverse effect, a petitioner must demonstrate that some plausible defense strategy or tactic might have been pursued but was not, because of the conflict of interest.

29
In this case there are two distinct ways in which Skelton's simultaneous representation of Perillo and Fletcher adversely affected his representation of Perillo.   First, Skelton could have taken actions to keep Fletcher from testifying.   Second, Skelton could have aggressively cross-examined Fletcher, attempting to impeach her testimony.   While we cannot predict whether these tactics would have been successful, the outcome is not determinative.   What matters is that Skelton's simultaneous representation of Fletcher and Perillo foreclosed viable options.   Perillo was adversely affected.

1. Fletcher's Return to Texas

30
Skelton's simultaneous representation in California of Fletcher and Perillo fettered his discretion.   If Skelton had represented only Perillo at the California hearing, he could have made arguments to keep Fletcher from being returned to Texas to testify.   The subpoena hearing in California was one of the most important events surrounding Perillo's trial, because it was there that the decision that Fletcher would have to testify was made.   This decision proved fatal to Perillo because, as the Texas Court of Criminal Appeals recognized, Fletcher provided the damaging details that allowed the jury to answer the special punishment issues in favor of death.  Perillo, 758 S.W.2d at 572.

31
The hearing in California on Fletcher's returning to Texas to testify was not a mere formality:  the State of Texas had to prove that Fletcher was a material and necessary witness.10  There were grounds upon which Skelton representing Fletcher could have fought the subpoena.   Texas had to show that Fletcher was a material and necessary witness.   Because Fletcher did not testify at Perillo's first trial and Perillo was still found guilty and sentenced to death, it could certainly be argued that Fletcher was not material and necessary to the State's case against Perillo.   Additionally, Skelton could have appealed the decision of the California court.

32
Perillo does not need to prove that the result of the trial would have been different absent the conflict--this is not a Strickland case.   Perillo only needs to show that the actual conflict adversely affected her.   Perillo was adversely affected by her attorney representing the State's star witness against her in a proceeding to return the witness to testify, especially when it was in the witness' interest to testify.

2. Skelton's Cross-Examination of Fletcher
The Court of Criminal Appeals said that:

33
Fletcher's direct testimony was most damaging to [Perillo], not only as it pertained to the question of guilt, but also as it related to the special punishment issues, particularly future dangerousness.   Other than testimony from two California police officers that [Perillo's] reputation there for peaceableness was bad, in this cause the State would present no new evidence at the penalty stage bearing on this issue.   Fletcher's testimony was undeniably susceptible to interpretation as demonstrating in appellant's attitude both before and after commission of the offense a most 'calculated and cold-blooded' bent.   It was imperative that [Skelton] neutralize the effect of that testimony, if he could.

34
Perillo, 758 S.W.2d at 572 (Emphasis added, internal citations omitted).

35
Faced with the decision of how to neutralize Fletcher's testimony, Skelton did not choose to attack her credibility and impeach her as a witness.   The Court of Criminal Appeals itself recognized that Skelton's cross-examination of Fletcher was not rigorous.11  Perillo v. State, 758 S.W.2d 567, 572 (Tex.Crim.App.1988).   Rather, Skelton chose to portray both Fletcher and Perillo as victims, manipulated by the evil Briddle.

36
The district court held that "Skelton's decision not to engage in impeachment or rigorous cross-examination of Fletcher at Perillo's trial was a reasonable trial strategy supported by sound professional judgment."   However, this is the wrong legal standard.   The proper question is whether some plausible defense strategy or tactic might have been pursued, but was not, because of the conflict of interest.   Supra III(B).

37
Skelton had another plausible defense strategy that he could have used:  he could have attacked Fletcher's credibility and attempted to impeach her testimony.   In her petition, Perillo identifies at least six particular items which Skelton could have used to impeach Fletcher.12  This aggressive strategy could have led the jury to believe at least two things:  (1) Fletcher's role in the murder was not as passive as she implied and (2) Fletcher held a grudge against Perillo because it was Perillo's confession that caused her arrest.   This certainly could have led the jury to discount Fletcher's tale about Perillo's cruelty and cold-heartedness.   Impeaching Fletcher might not have gotten Perillo acquitted, but, the trial was not about guilt, it was about punishment.   With Perillo's confession, the only real issue in the trial was whether Perillo would be sentenced to death.   Impeaching Fletcher certainly could have caused the jury to answer "No" on the special punishment issues, especially the one about future dangerousness.   The Court of Criminal Appeals noted that the only real evidence the State presented on future dangerousness came from Fletcher.  Perillo, 758 S.W.2d at 572.

38
We must remember that under Cuyler the issue is not what was the best strategy, but whether there was a plausible defense strategy that might have been pursued but was not, because of the conflict of interest.   It is difficult to believe that impeaching the star state witness would not be a plausible defense strategy.

39
Impeaching Fletcher was a plausible defense strategy, but Skelton's representation of her precluded him from adopting it.   Instead, he chose the only strategy consistent with his dual representation of Fletcher and Perillo.   Skelton's duty of loyalty to Fletcher stopped him from considering a strategy that involved aggressively attacking Fletcher's credibility.   Skelton's plan of making Fletcher and Perillo appear sympathetic "was not a free choice of strategy.   It was the only course open."  Foxworth v. Wainwright, 516 F.2d 1072, 1079-80 (5th Cir.1975).13

IV. CONCLUSION

40
Perillo is claiming that her Sixth Amendment right to counsel was violated because her attorney at her capital murder trial, Jim Skelton, had an actual conflict of interest.   Perillo sought discovery and an evidentiary hearing at the federal district court, but they were denied.

41
In order to be entitled to discovery and an evidentiary hearing, a federal habeas corpus petitioner must show (1) that there is a factual dispute that, if resolved in the petitioner's favor, would entitle him to relief and (2) the State has not afforded the petitioner a full and fair evidentiary hearing.   The state habeas corpus court did not make any factfindings relevant to Perillo's conflict of interest claim.   Even if any factfindings were made, they were not the product of a full and fair evidentiary hearing.   Perillo has shown that there is a factual dispute about Skelton's representation of both Fletcher and Perillo during the time of Fletcher's subpoena hearing in California.   If the dispute is resolved in Perillo's favor, she is entitled to relief because Skelton's actions created an actual conflict that adversely affected Perillo.   Therefore, the district court erred in not allowing discovery and an evidentiary hearing.   The judgment of the district court is VACATED and the case is REMANDED for appropriate discovery and an evidentiary hearing.   We reiterate that we do not mean to suggest to the district court what result it should reach on remand, following the hearing.

42
GARWOOD, Circuit Judge, concurs in the result.

1
 Perillo raised many other issues below.   However, she briefed only the ineffective assistance of counsel issue.   She attempted to incorporate by reference her district court habeas corpus petition.   This is insufficient to preserve error.   Therefore, all other issues are waived on appeal.  Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993)

2
 While the crime resulted in the death of two men, Robert Banks and Bob Skeens, Perillo was only tried and convicted for the murder of Skeens.   A detailed statement of the facts in this case is found in the Texas Court of Criminal Appeals decision affirming Perillo's Texas conviction.  Perillo v. State, 758 S.W.2d 567 (Tex.Crim.App.1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3263, 106 L.Ed.2d 608 (1989)

3
 Robert Pelton was originally appointed to represent Perillo at her second trial.   Skelton was appointed as Pelton's co-counsel in November 1983, because he was familiar with the facts of the case through representing Fletcher.   Perillo's counsel at her first trial was William Burge;  Skelton had no involvement in that first trial and Fletcher did not testify

4
 Perhaps Skelton's actions in the habeas proceeding should not be surprising, given the tone of his affidavits.   Rather than merely denying that he labored under a conflict, Skelton instead chose to mock Perillo's habeas case, saying:
Had we done what Perillo suggests and succeeded in convincing the jury that Linda was a lying California bitch who tugged on the rope with Perillo, this would not have helped with the major stumbling block in Perillo's case--her confession.

5
 While the evidentiary hearing and discovery will be limited, we think that it will be helpful if the parties also explore whether Fletcher gave any confidential information to Skelton when he represented her

6
 The state habeas court did not actually make specific background findings concerning Skelton's representation.   Instead, the court merely recited the facts that the Court of Criminal Appeals considered in making its finding of no conflict or adverse effect.   The habeas court said the Court of Criminal Appeals considered,
Skelton's prior representation of Linda Fletcher;  the lack of any attorney client relationship between her and Skelton at the time she testified;  the fact that Fletcher at the time of her testimony had other, independent counsel advising her;  the personal friendship which had developed between Fletcher and Skelton, including the fact that Skelton had flown to California to attend her wedding.
To the extent that these can be considered implicit background factfindings, they do not address the issue of Skelton's representation of Fletcher in California when Perillo's trial was in progress, or his failure to aggressively cross-examine Fletcher at trial, the importance of which we discuss in Part III(B)(2).
It is possible that the Court of Criminal Appeals factfindings on direct appeal can qualify as § 2254(d) findings of fact.  May, 955 F.2d at 312.   However, the Texas Court of Criminal Appeals did not make specific findings regarding Skelton's conduct in California.   The only findings relevant to the conflict of interest issue is the Court of Criminal Appeals' finding of no actual conflict and no adverse effect.   But, as discussed earlier, these are mixed questions of law and fact, which are reviewed de novo and are not entitled to the presumption of correctness.  Koch, 907 F.2d at 527.

7
 Paper hearings are hearings where the state judge did not hear live testimony, but instead relied on affidavits

8
 Skelton flew to California for the hearing on Monday, November 5, 1984, the first day of testimony in Perillo's trial.   Fletcher testified on Wednesday, November 7, 1984

9
 The Beets majority opinion, written by Judge Jones, held that Strickland rather than Cuyler applied in the particular circumstances of that case.   In an alternative holding, which was not adopted by a majority of the court, Judge Jones argues that even if Cuyler applied, there was still no showing of adverse effect.   She received only five votes out of thirteen for that proposition.   Judge King's dissent and Judge Higginbotham's concurrence rejected Judge Jones' attempt to raise the adverse effect hurdle.   Therefore, a majority of the en banc court believed that the Cuyler adverse effect test was met in Beets

10
 CAL.PENAL CODE §§ 1334 et seq.  (UNIFORM ACT TO SECURE THE ATTENDANCE OF WITNESSES FROM WITHOUT A STATE IN CRIMINAL PROCEEDINGS (1974)).   For a California court to enforce an out of state subpoena, the party seeking the subpoena must obtain a certificate from the state trial judge which states that (1) there is a criminal prosecution pending in the court;  (2) a person within the state [California] is a material witness in that prosecution, and (3) his or her presence will be required for a specified number of days.   CAL.PENAL CODE § 1334.2.   At a hearing, the judge will determine if (1) the witness is material and necessary;  (2) whether requiring the witness to testify in the other state will cause him or her undue hardship;  and (3) whether the laws of the other state will protect the witness from arrest and service of civil and criminal process.   Id

11
 Skelton did not perform much better when Fletcher was being directly examined by the State.   Skelton did not object even once to her testimony

12
 In her federal habeas petition, Perillo alleged that:
(a) Skelton failed to mention or adduce evidence that at the time of her arrest, Fletcher had blood on her jeans.   This evidence would have shed doubt on Fletcher's credibility and on the veracity of her statements that she did not participate in the crime for which Ms. Perillo was tried.
(b) Skelton failed to point out to the jury that Ms. Perillo turned Fletcher in to the police, giving Fletcher a motive for incriminating Ms. Perillo.   This evidence would have impeached Fletcher's testimony.
(c) Skelton failed to impeach Fletcher's inconsistent testimony that Fletcher told Denver police that the last time she saw Banks he let her off on the freeway and that as far as she knew, Banks was alive and well.   Fletcher's statement substantially conflicts with her testimony at Ms. Perillo's trial.   The inconsistent statement, presented at Briddle's trial, would have shed doubt on Fletcher's credibility.
(d) Skelton failed to elicit testimony that the only fingerprints identified in the entire trial were Fletcher's.   By failing to identify the fingerprint match, Skelton prejudiced the jury against Ms. Perillo by suggesting they were her fingerprints instead of Fletcher's.
(e) Skelton incriminated Ms. Perillo by eliciting testimony from Fletcher regarding Ms. Perillo's alleged participation in a variety of extraneous offenses.
(f) Skelton protected Fletcher from a rigorous cross-examination by reviewing his cross-examination with Fletcher prior to her testimony.
(Emphasis in original;  internal citations omitted).

13
 We are also disturbed by what is an uncontroverted fact in the habeas record, i.e. that upon her return to Texas to testify in Perillo's second trial, Fletcher stayed at the home of Skelton the night before her testimony was given.   Skelton and the State attempted to rationalize the propriety of this conduct on the basis of the "friendship" which developed between Fletcher and Skelton when Skelton represented Fletcher in her aggravated robbery trial and which was later evidenced by Skelton going to California to "give Fletcher away" at her second marriage.   But that rationalization simply confirms the reality of the conflict of interest position in which Skelton placed himself


                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                              July 1, 2005
                                TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 04-3283
          v.                                             (D. of Kan.)
 MARTIN LEE PARIS,                              (D.C. No. 03-CR-40031-RDR)

               Defendant-Appellant.

                           ORDER AND JUDGMENT            *

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.           **

      Martin Lee Paris appeals the 180-month sentence the district court imposed

after he pled guilty to one count of bank robbery in violation of 18 U.S.C.

§ 2113(a). Specifically, Paris claims the district court violated his Sixth

Amendment rights when it enhanced his sentence based on prior convictions

because they were neither admitted nor found by a jury beyond a reasonable

      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
doubt. Taking jurisdiction pursuant to 28 U.S.C. § 1291, we find Paris waived his

right to appeal and dismiss the appeal.

       Paris entered into a plea agreement whereby he

              knowingly and voluntarily waiv[ed] any right to appeal or
              collaterally attack any matter in connection with [his]
              prosecution, conviction and sentence. . . . [He also] waive[d]
              the right to appeal the sentence imposed in this case except to
              the extent, if any, the court depart[ed] upwards from the
              applicable sentencing guideline range determined by the court.

ROA Vol. 1; Tab 59. To ascertain whether this appellate wavier should be

enforced, we use the three-prong approach set forth in       United States v. Hahn , 359

F.3d 1315, 1325 (10th Cir. 2004). Thus, we must determine: “(1) whether the

disputed appeal falls within the scope of the waiver of appellate rights; (2)

whether the defendant knowingly and voluntarily waived his appellate rights; and

(3) whether enforcing the waiver would result in a miscarriage of justice.”         Id.

       First, this appeal is within the scope of the waiver. The district court did

not “depart upwards.” The district court not only sentenced Paris within the

“applicable sentencing guideline range,” but also imposed an alternative sentence

due to the uncertainty of the legal landscape at the time of sentencing.      1
                                                                                Second,

Paris knowingly and voluntarily waived his right to appeal as evidenced by the

       1
        While Paris’s case and sentence were being decided, the Supreme Court
heard arguments in Blakely v. Washington, 124 S. Ct. 2531 (2004). Since then,
the Court has not only handed down Blakely, but also United States v. Booker,
125 S. Ct. 738 (2005).

                                             -2-
language of the plea agreement and the Petition To Enter Plea Of Guilty And

Order Entering Plea. Finally, enforcing the waiver would not result in a

miscarriage of justice because neither of the district court’s alternative sentences

violate United States v. Booker, 125 S. Ct. 738 (2005), due to the fact that the

only challenged enhancement is based on a prior conviction.      See Booker , 125 S.

Ct. at 756 (reaffirming the holding in   Apprendi v. New Jersey , 530 U.S. 466

(2000), that a court does not violate a defendant’s Sixth Amendment rights when

it determines the fact of prior conviction).

       Therefore, we find Paris waived his right to appeal his sentence. As a

result, we dismiss the appeal. We also deny the government’s Motion to Dismiss

Appeal Because of Supervening Change of Law or Mootness.

                                                 Entered for the Court

                                                 Timothy M. Tymkovich
                                                 Circuit Judge

                                           -3-


232 Va. 150 (1986)
 348 S.E.2d 275
EDDIE DUANE ENDICOTT, AN INFANT, ETC.
v.
LORENE G. RICH AND THE GILLETTE COMPANY
Record No. 830823
Supreme Court of Virginia
September 5, 1986
George Mason, III; William T. King (Mason, Williams & Mason, on brief), for appellant.
Robert W. Wooldridge, Jr. (Grady C. Frank, Jr.; Boothe, Prichard & Dudley, on brief), for appellees.
Present: All the Justices
Rulings that, as a matter of law, the defendant in a personal injury case was not negligent and that the plaintiff was contributorially negligent were in error, and the judgment of the trial court is reversed.
Defendant was driving on a two lane state road when she saw two boys on bicycles riding along her side of the road.  She took her foot off the accelerator and attempted to go around the boys by going partially into the opposite lane.  Both boys swerved in front of defendant's car in an effort to reach the other side of the road.  The thirteen-year-old plaintiff was struck and seriously injured.  A negligence action followed.  At the conclusion of plaintiff's case, the trial court struck the plaintiff's evidence and ruled as a matter of law that the defendant was not negligent and that the plaintiff was contributorially negligent.  This appeal by plaintiff follows.
1.  The evidence here raised a jury question as to whether defendant kept a proper lookout or took advantage of what a proper lookout would have disclosed.
2.  There was evidence from which the trier of fact could conclude that defendant did not increase her vigilance and did not act upon the assumption that the boys might not operate their bicycles in a careful manner, despite her duty to approach the boys with care appropriate to the circumstances.
3.  There was evidence from which the trier of fact could conclude that the defendant did not have her car properly under control when she attempted to pass the two boys.
4.  Since there was clearly enough evidence to submit to the trier of fact on the question of defendant's negligence, the trial court erred in ruling as a matter of law that the defendant was not negligent.
5.  In order to establish that plaintiff was contributorially negligent, defendant had to meet two independent burdens of proof because the defendant was only thirteen years of age and was presumed incapable of negligence.
6.  In order to rebut the presumption that plaintiff was incapable of negligence, defendant was required to establish that in light of plaintiff's age, intelligence, and experience, he was capable of understanding and appreciating the nature of the danger and peril associated with his conduct.
7.  There is no proof that plaintiff was capable of understanding that the choice he made to avoid the accident was a dangerous choice.
8.  The trial court erred in ruling as a matter of law that plaintiff was contributorially negligent.
Appeal from a judgment of the Circuit Court of King George County.  Hon. Richard H. C. Taylor, judge presiding.
THOMAS
THOMAS, I., delivered the opinion of the Court.
This is an appeal of a negligence action in which the trial court struck the plaintiff's evidence at the conclusion of plaintiff's case.  Eddie Duane Endicott, a thirteen-year-old boy who was riding a bicycle on State Route 205 in King George County, was involved in a collision with a car driven by Lorene G. Rich. Endicott sued Rich through his mother and next friend.  At the conclusion of plaintiff's case, the trial court ruled as a matter of law that Rich was not negligent and that Endicott was contributorially negligent.
On appeal, Endicott contends that both rulings were in error; we agree. Therefore, we will reverse the judgment of the trial court.
The evidence and all reasonable inferences arising therefrom must be viewed in the light most favorable to Endicott.  The accident occurred on May 18, 1980. Endicott and his twelve-year-old friend Rodney Staples were together at Staples' house when the two boys asked permission from Staples' parents to ride their bicycles to the store to get something to drink.  The boys received permission to make their trip and were cautioned to be careful.
Once on Route 205, the boys rode, for the most part, on the right hand edge of the paved road between the outside painted strip and the edge of the paved portion of the road.  However, just prior to the collision, Endicott was telling Staples about a fish he had caught which broke his fishing pole.  As Endicott related the story, he slowed his pace and Staples came up beside him.  As a result, immediately before the collision, the boys were riding side by side with Endicott on the inside and Staples on the outside; both boys were on the paved surface.  Prior to the accident, no cars had passed Endicott from the rear and Endicott was unaware that Rich's car was approaching from behind.
Rich saw Endicott and Staples when the boys were about one-half mile in front of her.  She recognized that she was looking at two boys riding bicycles on her side of the road yet she could not determine whether they were riding towards her or away from her.  Indeed, she testified that until the collision she was not sure in which direction the boys were riding.  Rich could see that the boys were talking to each other because, according to Rich, their heads were together as they rode.  However, as she approached the boys from the rear, she did not sound her horn.  She simply took her foot off the gas pedal which, in her words, caused her car to slow down "automatically."
Next, she attempted to pass the boys by crossing the center line and going partially into the opposite lane.  As Rich attempted to pass, Endicott looked up, saw the car and attempted to get to a position of safety by riding as quickly as he could towards the opposite side of the highway.  Rich struck the back wheel of Endicott's bicycle in Endicott's lane.  At the time of the collision, Rich's car was more in Endicott's lane than in the opposite lane.
Endicott contends that reasonable men could differ as to whether Rich breached any one of several duties owed Endicott as Rich approached the two boys from the rear.  According to Endicott, Rich failed to maintain a proper lookout or to take advantage of what a proper lookout would have disclosed; failed to increase her vigilance and to act upon the assumption that the two boys might not operate their bicycles in a careful manner; and failed to keep her vehicle under control and to operate it at a speed governed by the circumstances.
In our view, the evidence raises a jury question as to whether Rich kept a proper lookout or took advantage of what a proper lookout would have disclosed. See Neal v. Spencer, 181 Va. 668, 26 S.E.2d 70 (1943).  Though the boys were in Rich's view for one-half mile as she approached them and though she could see that they were boys and that they were talking, she never determined that their backs were to her and that Endicott was unaware of her approach.  The direction in which the boys were riding should have been important to Rich.  If they were riding towards her she might have expected them to see her.  However, if their backs were to her she should have known that there was a chance they were unaware of her presence.  Additionally, had the case gone to the jury, the jury might have believed that if Rich could have observed that the riders were two boys and that they were engaged in conversation, then she should have observed that they were unaware of her presence.
We are of the further opinion that there was evidence from which the trier of fact could have concluded that Rich did not increase her vigilance and did not act upon the assumption that the boys might not operate their bicycles in a careful manner.  In Coward v. Taylor, Adm'r, 197 Va. 188, 89 S.E.2d 40 (1955), we wrote as follows about the duty that rests upon a motorist who sees a child in the road:
Where the driver of a motor vehicle sees, or should see, a child in or near a street or highway he must exercise that degree of care not to injure it that a person of ordinary prudence would exercise under similar circumstances, taking into consideration what is common knowledge -- that the actions of children are erratic and unpredictable and that a child may act thoughtlessly and upon childish impulses.  Boyd v. Brown, 192 Va. 702, 66 S.E. (2d) 559; Williams v. Blue Bird Cab Co., 189 Va. 402, 52 S.E. (2d) 868; Clark v. Hodges, 185 Va. 431, 39 S.E. (2d) 252.
While the driver of a motor vehicle is not an insurer of the safety of children he may encounter upon the streets and highways, his duty toward them is not measured by the standards applicable to adults.  Since children are presumed to lack the knowledge and experience to know the essential danger or to estimate correctly the probable consequences of their acts in a given situation, the duty of reasonable care required of the driver of a motor vehicle toward them is commensurate with the danger and probability of injury under the circumstances. 197 Va. at 191, 89 S.E.2d at 42 (emphasis added).  In this case, Rich knew she was driving towards two boys on bicycles who were engaged in conversation.  She should have known that they might be unaware of her approach and that they might either move from their position of relative safety at the edge of the road or be startled to be overtaken by a fast moving car.Despite what she observed, Rich did not apply her brakes; she simply took her foot off the accelerator. Moreover, she did nothing, such as sounding her horn, to warn the boys of her approach.  Rich had the duty to approach the boys with care appropriate to the circumstances.  In Edgerton v. Norfolk Sou. Bus Corp., 187 Va. 642, 655, 47 S.E.2d 409, 416 (1948) (quoting Morris v. Peyton, 148 Va. 812, 822, 139 S.E. 500, 503 (1927)), a case in which a twelve-year-old boy was struck and killed by a bus, we said that "'[t]he law recognizes the fact that children act upon childish instincts and impulses and requires those charged with the duty of care and caution toward them to calculate upon this and take precaution accordingly.'" There was ample evidence from which the trier of fact could have concluded that Rich failed to meet the duty imposed on her under the circumstances. *
* Endicott has raised a separate issue concerning a duty on Rich to sound her horn.  Endicott argues that this duty either arises by operation of statute or through the application of common law principles.  We need not resolve that specific issue to dispose of this appeal because we are of the view that whether Rich should have warned the boys of her approach either by sounding her horn or some other method is subsumed in the larger question whether she failed to increase her vigilance and to act upon the assumption that the boys might not be careful.
We are also convinced that there was evidence from which the trier of fact could have concluded that Rich did not have her car properly under control when she attempted to pass the two boys.  In Ball v. Witten, 155 Va. 40, 154 S.E. 547 (1930), we discussed the question of maintaining control over an automobile where children are present.  In Ball, the defendant encountered a group of children walking in the road.  Defendant sounded his horn, applied his brakes, and reduced his speed to between fifteen and eighteen miles per hour.  Children ran to both sides of the road so that defendant had to drive between them in order to pass.  As he did this, one child darted in front of his car and was killed.  Defendant received a jury verdict in his favor.  We reversed.  We wrote as follows on the issue of the defendant's duty to control his vehicle:
Under the surroundings then existing, if the defendant desired to pass between the children when the space between them was thirteen to fifteen feet, his obvious duty was, on approaching them, to bring his automobile under complete control and to exercise the care the danger of the situation demanded. Knowing, a sufficient interval in advance, that the children were of immature minds and could not take care of themselves; that they would likely commit some irresponsible act and that they were in a perilous position, he should have proceeded with his automobile under such control that if necessary to avoid injury, he could have brought it to a stop. If stopping was the only effectual means he had at his disposal to avoid the injury, then he should have exercised that means. Id. at 47, 154 S.E. at 549 (emphasis added).  Similarly, in Transit Company v. Brickhouse, Adm'r, 200 Va. 844, 108 S.E.2d 385 (1959) (reversed and remanded on other grounds), where a thirteen-year-old boy on a bicycle was struck and killed by a bus, we said the following:
[I]t was proper to submit to the jury the question of whether or not the bus driver in the exercise of reasonable care should have seen the boy so riding in front of him in time to have brought his bus under such control as to be able to slow down or stop if necessary to guard against the uncertain movements of a young boy on a bicycle. Id. at 847, 108 S.E.2d at 387 (emphasis added) (citations omitted).
In the instant case, Rich attempted to pass two boys on bicycles who had their backs to her and who were obviously engaged in conversation.  She was driving at 50 miles per hour.  At such a speed there was little she could do if one of the boys darted in front of her car.  There was sufficient evidence to permit the trier of fact to conclude that Rich did not have her car under control.
There was clearly enough evidence in the case to submit it to the trier of fact on the question of Rich's negligence.  We hold, therefore, that the trial court erred in ruling as a matter of law that Rich was not negligent.
We turn now to the question whether the evidence developed in Endicott's case established that he was contributorially negligent as a matter of law.  The evidence on this issue was that at the time of the collision, Endicott was three months shy of turning fourteen; he was an experienced bicyclist having ridden a bicycle since he was four years old; he knew it was dangerous to ride a bicycle on Route 205; he had been warned by his parents on a prior occasion to be careful on Route 205; he was warned to be careful by Staple's father just before the boys left for the store; he knew that being careful meant riding on the edge of the road; and he knew that riding a bicycle on the hard-surface portion of Route 205 was dangerous.
In order to establish that Endicott was contributorially negligent, Rich had to meet two independent burdens of proof.  This is so because, at the time of the collision, Endicott was only thirteen years old and was presumed incapable of negligence.  See Grant v. Mays, 204 Va. 41, 129 S.E.2d 10 (1963). Consequently, Rich first had to rebut the presumption that Endicott was incapable of negligence.  Only then would Rich be in a position to attempt to meet her next burden of proving that Endicott's conduct at the time of the collision amounted to contributory negligence.  Despite this double-barreled burden resting upon Rich and despite the fact that the only evidence before the Court was adduced in Endicott's case, the trial court concluded as a matter of law that Endicott was contributorially negligent.  In our opinion, this was error.
In order to rebut the presumption that Endicott was incapable of negligence, Rich was required to establish that in light of Endicott's age, intelligence, and experience, Endicott was capable of understanding and appreciating the nature of the danger and the peril associated with his conduct.  See Norfolk & Portsmouth Railroad v. Barker, 221 Va. 924, 275 S.E.2d 613 (1981).  Rich relies heavily on Barker in arguing that Endicott was contributorially negligent as a matter of law.  Barker involved a ten-year-old boy who was injured while attempting to jump onto a moving train.  The evidence was that the child had been jumping on trains for several years and that he knew jumping on trains was dangerous.
Barker is inapposite to the present case.  There, the conduct that resulted in the injury was attempting to jump on a train.  There, the child admitted knowing that the very conduct which led to the injury was dangerous.  Here, however, Rich appears to argue that because Endicott had been warned and admitted knowing that it was dangerous to ride a bicycle along Route 205 he was contributorially negligent as a matter of law.  When analyzed closely, it is plain that Rich's argument is without merit.
The conduct which Rich says contributed to this accident was not that of riding on Route 205.  Rich stated that had the boys ridden along the edge of the road there would not have been an accident.  Indeed, according to Rich, even if Endicott had remained where he was on the paved portion of the road, at the time she attempted to pass, the accident would not have happened.  The conduct Rich complains of is that Endicott "swerved in front of" her car.  Rich said he attempted to cross to the other side of the road to avoid the collision.  In order to prove Endicott's capacity, Rich was required to prove that in light of his age, intelligence, and experience, Endicott was capable of understanding and appreciating that it was dangerous for him to attempt to avoid a collision with a car approaching from his rear by riding his bicycle to the other side of the road.  There is no proof in Endicott's case that he was capable of understanding that the choice he made to avoid the accident was a dangerous choice.  On the contrary, the choice Endicott made goes far to show why the presumption exists. He made a childish decision to go to the opposite side of the road instead of to the side closer to him.  Interestingly, his twelve-year-old companion made the same decision.
We hold that the trial court erred in ruling as a matter of law that Endicott was contributorially negligent.  Therefore, we will reverse the judgment of the trial court and remand the case for retrial.
Reversed and remanded.
Reversed and remanded.$89:#GGG#
POFF
POFF, J., dissenting.
I dissent.  Applying the rules and rationale in Norfolk & Portsmouth Railroad v. Barker, 221 Va. 924, 275 S.E.2d 613 (1981), I would affirm the trial court's holding that Endicott was guilty of contributory negligence as a matter of law.


317 U.S. 88 (1942)
WARREN-BRADSHAW DRILLING CO.
v.
HALL, AGENT, ET AL.
No. 21.
Supreme Court of United States.
Argued October 16, 1942.
Decided November 9, 1942.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
*89 Mr. Frank Settle, with whom Mr. Sam Clammer was on the brief, for petitioner.
Mr. Dallas Scarborough, with whom Mr. Ellis Douthit was on the brief, for respondents.
Solicitor General Fahy and Messrs. Irving J. Levy, Mortimer B. Wolf, and Peter Seitz filed a brief on behalf of the Administrator of the Wage and Hour Division, U.S. Department of Labor, as amicus curiae, urging affirmance.
MR. JUSTICE MURPHY delivered the opinion of the Court.
We are concerned here, as in Kirschbaum Co. v. Walling, 316 U.S. 517, with a problem of statutory delineation, not *90 constitutional power, in the application of the Fair Labor Standards Act[1] to a particular situation. This is an action to recover unpaid overtime compensation and an equal amount as liquidated damages, brought by respondent employees under § 16 (b). We must decide whether respondents are engaged "in the production of goods for commerce," within the meaning of § 7 (a) of the Act. The district court held that they were so engaged, and, since petitioner had failed to compensate them for overtime hours as required by § 7 (a), accordingly rendered judgment for each respondent in the appropriate amount.[2] The Circuit Court of Appeals affirmed with an immaterial modification,[3] and the case comes here on certiorari.
The application of the Act depends upon the character of the employees' activities. Kirschbaum Co. v. Walling, supra, p. 524. The burden was therefore upon respondents to prove that, in the course of performing their services for petitioner and without regard to the nature of its business, they were, as its employees, engaged in the production of goods, within the meaning of the Act, and that such production was for interstate commerce. We agree with both courts below that respondents have sustained that burden.
Petitioner is the owner and operator of rotary drilling equipment and machinery, who contracts with the owners or lessees of oil lands to drill holes to an agreed-upon depth short of the oil sand stratum. When that depth is reached, the rotary rig is removed, and the machinery and crew move on to other locations. For reasons peculiar to the oil industry, a cable drilling crew then undertakes with cable tools to "bring in" the well, or else demonstrate that it is a dry hole. Respondents were employed by petitioner *91 as members of its rotary drilling crew and worked on approximately thirty-two wells in the Panhandle Oil Field of Texas; thirty-one of those wells produced oil, and the other one produced gas. Petitioner was not the owner or lessee of any of the lands on which respondents drilled, and was not shown to have any interest therein or in the oil produced.
In § 3 (j) Congress has broadly defined the term "produced,"[4] and has provided that "an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State." Whether or not respondents, in drilling to a specified depth short of oil, may be regarded as engaged in producing or mining  and we certainly are not to be understood as intimating that they may not  recognition of the obvious requires us to hold that, at the very least, they were engaged in a "process or occupation necessary to the production" of oil. Oil is obtained only by piercing the earth's surface; drilling a well is a necessary part of the productive process to which it is intimately related. The connection between respondents' activities in partially drilling wells and the capture of oil is quite substantial, and those activities certainly bear as "close and immediate tie" to production as did the services of the building maintenance workers held within the Act in Kirschbaum Co. v. Walling, supra, pp. 525-526.
The evidence supports the finding that some of the oil produced ultimately found its way into interstate commerce. All the wells had pipeline connections, some of them being with petroleum companies operating on a *92 national scale, wherein the oil was commingled with the production of other wells. Officials of the State of Texas testified that some crude oil is shipped out of the State by these pipelines, and that a large percentage of crude oil sent to refineries in Texas thereafter passes out of the State in the form of refined products.
Petitioner contests the applicability of the Act on the ground that it, as an independent contractor not financially interested in the wells, had no intention, expectation or belief that any oil produced would be shipped in interstate commerce, and cites as support United States v. Darby, 312 U.S. 100, 118, where it was said that the "production for commerce" intended by Congress includes "at least production of goods, which, at the time of production, the employer, according to the normal course of his business, intends or expects to move in interstate commerce although, through the exigencies of the business, all of the goods may not thereafter actually enter interstate commerce." Respondents counter with the proposition that it is enough that the owners of the oil wells expected the oil produced to move across state lines, but the Government does not ask,[5] and there is no need for, us to pass upon that proposition. The Act extends at least to the employer who expects goods to move in interstate commerce. United States v. Darby, supra. Assuming that such expectation, or a reasonable basis therefor, was necessary on petitioner's part before the application of the Act to petitioner, it is here present. The record contains ample indication that there were reasonable grounds for petitioner to anticipate, at the time of drilling, that oil produced by the wells drilled, would move into other states. Petitioner, closely identified as it is with *93 the business of oil production, cannot escape the impact of the Act by a transparent claim of ignorance of the interstate character of the Texas oil industry. St. John v. Brown, 38 F. Supp. 385, 388; cf. Fleming v. Enterprise Box Co., 37 F. Supp. 331, 334-335, affirmed, 125 F.2d 897.
One final contention merits but slight consideration. Respondents were employed on the basis of an eight hour day and regularly worked seven days a week, receiving fixed wages ranging from $6.50 to $11 per day. There was no agreement providing for an hourly rate of pay or that the weekly salary included additional compensation for overtime hours. Petitioner urges that it complied with the overtime compensation requirements of the Act because respondents received wages in excess of the statutory minimum wage, including time and one-half of that minimum wage for all overtime hours, which wages respondents impliedly agreed included overtime compensation by accepting them. A similar argument was squarely rejected in Overnight Motor Co. v. Missel, 316 U.S. 572.
Affirmed.
MR. JUSTICE ROBERTS:
I dissent, as I did in Kirschbaum Co. v. Walling, 316 U.S. 517, and for the same reason. But I think the present a more extravagant application of the statute than that there approved. We may assume that Congress, in drafting the Act, had in mind the practical, as distinguished from a theoretical, distinction between what is national and what is local,  between what, in fact, touches interstate commerce and what, in truth, is intrastate.
The phrases on which respondents rely are these: An employee "who is engaged in [interstate] commerce or in the production of goods for [interstate] commerce," § 7 (a); and "`Produced' means produced, manufactured, *94 mined, handled, or in any other manner worked on in any State; and for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State," § 3 (j).
The opinion disavows any thought that the respondents may be classed as those who mine the oil which passes into commerce; but this seems to be a reservation intended not to preclude such a holding. The Court relies, rather, on the Act's inclusion of anyone employed "in any process or occupation necessary to the production" of goods for commerce.
The reasoning seems to be as follows: The oil will pass into commerce if it is mined. But it cannot be mined unless somebody drills a well. An independent contractor's men do part of the drilling. Their work is "necessary" to the mining and the transportation of the oil. So they fall within the Act.
This is to ignore all practical distinction between what is parochial and what is national. It is but the application to the practical affairs of life of a philosophic and impractical test. It is but to repeat, in another form, the old story of the pebble thrown into the pool, and the theoretically infinite extent of the resulting waves, albeit too tiny to be seen or felt by the exercise of one's senses.
The labor of the man who made the tools which drilled the well, that of the sawyer who cut the wood incidentally used, that of him who mined the iron of which the tools were made, are all just as necessary to the ultimate extraction of oil as the labor of respondents. Each is an antecedent of the consequent,  the production of the goods for commerce. Indeed, if respondents were not fed, they could not have drilled the well, and the oil would not have *95 gone into commerce. Is the cook's work "necessary" to the production of the oil, and within the Act?
I think Congress could not and did not intend to exert its granted power over interstate commerce upon what in practice and common understanding is purely local activity, on the pretext that everything everybody does is a contributing cause to the existence of commerce between the States, and in that sense necessary to its existence.
NOTES
[1]  52 Stat. 1060, 29 U.S.C. § 201 et seq.
[2]  40 F. Supp. 272.
[3]  124 F.2d 42.
[4]  "`Produced' means produced, manufactured, mined, handled, or in any other manner worked on in any State; . . ."
[5]  The Solicitor General submitted a brief on behalf of the Administrator of the Wage and Hour Division, United States Department of Labor, as amicus curiae.