NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: January 5, 2026
S25A1367. DILLS v. WEAVER.
LAND, Justice.
Warden Allen Dills appeals the grant of a writ of habeas corpus
to appellee Tamara Nicole Weaver, who was found guilty after a
2014 jury trial of two counts of cruelty to children in the first degree,
two counts of cruelty to children in the second degree, three counts
of aggravated battery, and three counts of aggravated assault in
connection with the physical abuse of her infant son, K.W.1 In 2023,
Weaver filed a petition for writ of habeas corpus, which was granted
based on the habeas court’s finding that her trial counsel provided
her with ineffective assistance by operating under an actual conflict
of interest arising from his previous representation of her then-
1 In 2019, the Georgia Court of Appeals affirmed Weaver’s convictions,
and this Court denied certiorari review. Weaver v. State, 351 Ga. App. 167, 176 (2019), cert. denied, No. S19C1502 (Ga. Feb. 10, 2020). husband and co-defendant, Michael Tyler, in the same case. Having
reviewed the record, we affirm the habeas court’s grant of relief.
1. The underlying proceedings
(a) The trial evidence 2
In early 2013, Weaver had two sons, K.W. and a six-year-old.
When K.W. was less than two months old, Weaver and her children
moved in with Tyler.3 Although K.W. slept in the same bedroom as
Weaver and Tyler, he had his own bed. When he cried at night,
Weaver took him out of the couple’s room. When Weaver returned
to work, her mother took care of K.W. Weaver, Tyler, and Weaver’s
mother were the baby’s only caregivers.4
On March 6, 2013, when K.W. was almost three months old,
Weaver took him to Scottish Rite children’s hospital after she
2 A more detailed recitation of the facts can be found in the Court of
Appeals opinion affirming Weaver’s convictions. See Weaver, 351 Ga. App. at 167–69. 3 Tyler is not K.W.’s biological father. Tyler and Weaver were married
sometime between March 6 and March 8, 2013, shortly after K.W.’s injuries were discovered during an emergency room visit, as discussed below. 4 At trial, Weaver and Tyler stipulated that law enforcement had ruled
out Weaver’s mother as a suspect in the case.
2 became concerned by the infant’s worsening fussiness, which she
described as not “normal.” At the hospital, x-rays ordered by a child
abuse pediatrician revealed that K.W. had 16 bone fractures of
varying ages. Genetic testing ruled out the possibility of brittle bone
disease or other medical disorders that could have contributed to the
fractures, and the pediatrician testified at trial that K.W.’s injuries
were most consistent with physical abuse. Weaver told the hospital
pediatrician and law enforcement that she did not know how K.W.
had sustained his injuries and denied that anyone had hurt him.
Meanwhile, Tyler told the pediatrician and law enforcement that
Weaver was not getting much sleep, that Weaver was “cracking” due
to K.W.’s crying and fussiness, and that Weaver “dealt with him,”
but had no explanation for K.W.’s injuries. In a forensic interview,
Weaver’s older son did not “disclose anything where he was being
abused” or that he had witnessed any abuse of K.W. Weaver and
Tyler were arrested on March 18, 2013.
On June 25, 2013, attorney Morris Fair entered an appearance
on behalf of Tyler in connection with this case and filed a not guilty
3 plea.5 On December 4, 2013, a Spalding County grand jury indicted
Weaver and Tyler for two counts of aggravated battery and two
counts of cruelty to children (the “2013 Indictment”).
On January 7, 2014, Fair again entered an appearance on
behalf of Tyler in connection with the 2013 Indictment. On January
24, 2014, Fair filed a general and special demurrer to the 2013
Indictment, though it is unclear from the record whether he filed it
on behalf of Weaver, Tyler, or both. 6 On February 19, 2014, the 2013
Indictment was nol prossed. That same day, Pamela Stephenson,
an attorney who shared office space with Fair, entered an
appearance on behalf of Tyler in connection with the 2013
Indictment.
On March 12, 2014, a Spalding County grand jury returned an
indictment charging Weaver and Tyler with two counts of cruelty to
children in the first degree, two counts of cruelty to children in the
5 Fair was disbarred in 2017 for reasons unrelated to this case. See In the Matter of Fair, 300 Ga. 655 (2017). 6 The record does not contain a copy of either demurrer or any entry of
appearance by Fair for Weaver prior to the return of the March 12, 2014 indictment. 4 second degree, three counts of aggravated battery, and three counts
of aggravated assault (the “2014 Indictment”). On April 16, 2014,
Fair entered an appearance on behalf of Weaver and represented
her throughout trial. That same day, Stephenson entered an
appearance on behalf of Tyler and represented him throughout
trial.7
Tyler and Weaver were tried jointly. At trial, neither Weaver
nor Fair sought to blame Tyler for K.W.’s injuries despite the fact
that the Scottish Rite pediatrician testified that K.W.’s injuries were
consistent with abuse and the fact that Weaver and Tyler were the
only two suspects. In her trial testimony, Weaver offered no
alternative hypothesis for K.W.’s injuries, and she testified that she
had no idea how her child was injured, or alternatively, that K.W.
had not been injured at all and that the hospital may have made a
“mistake.”
Tyler testified that there were times that he took care of K.W.
7 Stephenson died on June 17, 2024, prior to the hearing on Weaver’s
habeas petition. 5 alone when Weaver “went and got her nails done and things of that
nature” but that he did not take care of K.W. when Weaver returned
to work after K.W. was born. Tyler also testified that K.W.’s injuries
were “unbelievable” and that “[i]t was something outside of abuse.”
Tyler denied harming K.W. himself and testified that he did not
believe that Weaver had harmed K.W. either.
The detective who interviewed Tyler testified that Tyler stated
during his interview that when K.W. cried, Weaver “dealt with him,”
that K.W.’s fussiness was “wearing [Weaver] down” and that Weaver
was only getting “one to two hours” of sleep per night. The Scottish
Rite pediatrician also testified that Tyler told him that Weaver was
“cracking” due to lack of sleep and K.W.’s crying.
Weaver was found guilty of all charges while Tyler was found
not guilty of all charges. On September 17, 2014, Fair filed a motion
for new trial on Weaver’s behalf. On June 23, 2017, attorney Ivar
Lacis filed an amended motion for new trial. During the hearing on
Weaver’s motion for new trial, Fair testified that his trial strategy
was that “it wasn’t proven that [Weaver] was the one” who harmed
6 K.W. After the hearing, the trial court denied Weaver’s motion for
new trial.
(b) Direct appeal
Lacis also represented Weaver in her direct appeal to the Court
of Appeals. On direct appeal, Weaver enumerated five errors, two of
which involved ineffective assistance of trial counsel claims: (1) that
trial counsel rendered ineffective assistance by failing to move for
the dismissal of the three counts of aggravated battery, and (2) that
trial counsel rendered ineffective assistance by failing to object to
the trial court’s jury instruction for cases based on wholly
circumstantial evidence. Lacis raised no issue on appeal concerning
Fair’s conflict of interest in representing Weaver after having
previously represented her co-defendant, Tyler. The Court of
Appeals affirmed Weaver’s convictions and sentences, and this
Court denied certiorari review. See Weaver, 351 Ga. App. 167 (2019),
cert. denied, No. S19C1502 (Ga. Feb. 10, 2020).
(c) Habeas proceedings
In 2023, represented by new counsel, Weaver filed the habeas
7 petition in this case, alleging, among other things, that Fair
rendered ineffective assistance of counsel due to a conflict of interest
stemming from his initial joint representation of both Weaver and
Tyler. Although the record contains no entry of appearance that
Fair filed on behalf of Weaver before April 16, 2014, Fair testified at
the habeas hearing that he was retained by both Weaver and Tyler
after their arrests on March 18, 2013. Fair testified that he met
with Weaver and Tyler, filed a motion to get Weaver visitation of her
son, and filed motions to modify both Weaver and Tyler’s bond
conditions. Fair admitted that he “may” have told Weaver and Tyler
“at the start of the case” that he could represent both of them “as
long as they were not pointing the finger at each other.”
In December 2013 or January 2014, several months after Fair
first entered an appearance on behalf of Tyler, Fair determined that
Weaver and Tyler needed separate counsel. Fair testified that after
conversations with Weaver about “potential defenses … [he]
suggested that [Tyler] would probably need to get another attorney.”
When asked whether those “possible defenses … would have been
8 something that would have implicated Mr. Tyler,” Fair answered,
“yes.”8
After deciding that Weaver and Tyler needed separate counsel,
Fair met with the couple and suggested his office-mate, Stephenson,
as the second attorney. When asked whether he advised Weaver
that he would be unable “to investigate and present a case on Ms.
Weaver’s behalf that Mr. Tyler may have done this” due to his prior
representation of Tyler, Fair answered, “No. I didn’t say that was
the situation at all.” Fair admitted that he did not disclose any
conflict of interest to Weaver, advise her of the risks associated with
dual representation, advise her to consult independent counsel
about the conflict, or obtain written consent to continue representing
her. Fair testified that he had conversations with Weaver about
arguing Tyler’s guilt as an alternative theory, but that Weaver
“would not even entertain” the possibility. Fair did not investigate
Tyler’s culpability or interview Weaver’s older son.
8 Despite his apparent recognition that Weaver and Tyler needed separate counsel, Fair continued to represent Weaver and filed a second entry of appearance for Tyler on January 7, 2014. 9 Fair testified that his defense theory at trial was that Weaver
did not commit the acts that she was charged with and that she was
a “loving mother” who took her child to the hospital. Fair testified
that he “considered” making the argument that Tyler was guilty, but
that Weaver “wanted to go with” a defense theory that K.W.’s
injuries were accidental. When asked whether his defense was that
someone other than Weaver harmed K.W., Fair stated “[o]r it was
an accident” and that Weaver “possibly could have rolled on [K.W.]
and could have caused the damage.” However, Fair did not consult
with any experts, did not remember whether he actually presented
an accident defense at trial,9 and conceded that rather than showing
an accident had occurred, “[t]he medical evidence suggest[ed] that
someone had beat the boy up.”
When asked why he did not cross-examine Tyler at trial, Fair
stated that Weaver and Tyler “both denied having any knowledge of
what could have happened” to K.W., and that “based upon the
9 The opening statements and closing arguments at trial were not transcribed, and the jury was not instructed on the defense of accident nor was such an instruction ever requested. 10 information that [Weaver] gave me,” “there was no reason for me to
cross-examine [Tyler], because I wasn’t trying to point the finger at
him.” When asked whether he would have cross-examined Tyler if
he gave “any testimony that [Fair] felt was damaging” to Weaver,
Fair stated “[o]f course.” Fair never explained how the decision not
to blame Tyler in any way squared with his testimony that the
medical evidence suggested that K.W. had been “beat” up, that Tyler
was the only alternative suspect, and that his conversations with
Weaver about possible defenses did in fact implicate Tyler.
During the evidentiary hearing on her habeas petition, Weaver
testified that Tyler was verbally abusive toward her during their
relationship. 10 After the couple was arrested in connection with
K.W.’s injuries, Tyler became physically and sexually abusive
toward Weaver and threatened to kill her if she left him. Weaver
testified that her older son witnessed Tyler’s abuse against her, that
Tyler’s family was “aware” of the abuse, and that she told a co-
10 Fair conceded during the habeas hearing that if he had evidence that
Weaver was being abused by Tyler, “that would have changed the nature of the case.” 11 worker about the abuse. Weaver also testified that although she
called the police about Tyler’s abuse, Tyler was not arrested.
Weaver stated that she testified during her trial that she did not
believe that anyone had harmed K.W. because she “didn’t want to
believe” he had been abused.
With regard to Fair’s representation, Weaver testified that she
believed Fair was going to represent both her and Tyler, and that
Fair never warned her about potential conflicts of interest or advised
her to consult with another attorney about his representation of her.
According to Weaver, Fair stated that “as long as nobody was
pointing a finger at the other, then he could represent both of us.”
Weaver testified that although she told Fair she was “innocent,” she
did not remember telling Fair that she did not want to blame Tyler
for K.W.’s injuries, and she specifically denied that Fair ever spoke
with her about trial strategy. About two weeks before trial, Fair
called Weaver and told her and Tyler that they “would need another
attorney going into trial.” Weaver testified that she, Tyler, and Fair
all met with Stephenson, and that she left that meeting with the
12 impression that Stephenson would be representing her at trial. On
the morning of trial, however, Weaver learned that Fair would
remain her attorney.
Dr. Marti Loring, an expert witness in trauma and domestic
violence, testified at the habeas hearing that she diagnosed Weaver
with PTSD stemming from childhood abuse and her relationship
with Tyler. Dr. Loring also testified that Weaver’s PTSD manifested
as passivity rather than aggression, that Weaver exhibited battered
person syndrome and Stockholm Syndrome symptoms, and that her
inability to recognize Tyler as K.W.’s abuser was consistent with
PTSD and battered person syndrome. Dr. Loring further testified
that there are behaviors common in child abusers, including
intolerance for crying and a tendency to punish physically, and that
Tyler’s behaviors fit those criteria.
Weaver’s appellate counsel, Ivars Lacis, who represented
Weaver at the motion for new trial stage and on direct appeal, also
testified at the habeas hearing. Lacis testified that he reviewed
Fair’s case file, including the entire trial transcript, but did not know
13 whether he reviewed the complete record in preparing Weaver’s
direct appeal. Lacis testified that he did not investigate Weaver’s
abuse allegations against Tyler. Lacis testified that he did not think
that Fair’s initial joint representation of Weaver and Tyler was
unusual “because it’s very common that people are charged jointly
with a crime. They initially go to one attorney, and then the cases
are farmed out” to conflict attorneys. Lacis admitted that he did not
know that Fair had filed an entry of appearance on behalf of Tyler
but that it did not change his analysis of whether that made Fair
conflicted. When asked whether he looked into a conflict of interest
involving Fair and Stephenson, Lacis stated that he determined that
a conflict of interest claim did not have any merit because the two
attorneys were unaffiliated. Lacis also testified that he did not see
any issue in Fair not cross-examining Tyler at trial because he was
cross-examined “extensively” by the State and he did not see “the
point” of Fair asking the “same questions.” However, Lacis conceded
that there was a basis on which to argue Tyler’s culpability as a
reasonable alternative hypothesis.
14 In its order granting Weaver’s petition, the habeas court found
that Fair “originally represented both [Weaver] and [Tyler] during
pretrial proceedings, without disclosing the obvious conflict” to
Weaver, and that Fair “failed to advise [Weaver] of the risks
associated with dual representation.” The habeas court also found
that Fair’s prior attorney-client relationship with Tyler “prevented
him from cross-examining” Tyler, who was the only remaining
alternative suspect due to pretrial stipulations by the defendants.
The habeas court further found that as a result of his conflict of
interest, Fair was “unable” to pursue the theory that Tyler was
guilty and was instead “confined to arguing that the treating
physician at Scottish Rite Hospital had misdiagnosed [K.W.]’s
injuries.” The habeas court concluded that these constraints on
Fair’s representation “arose directly from counsel’s conflict of
interest due to his prior representation” of Tyler and “impaired his
ability to zealously advocate” for Weaver at trial; accordingly, Fair’s
performance was adversely affected and Weaver established that
there was a conflict of interest.
15 The habeas court rejected the Warden’s argument that
Weaver’s claim is procedurally defaulted because she did not raise
it on direct appeal, finding that Weaver’s appellate counsel’s “failure
to raise the conflict-of-interest claim resulted from his own
constitutionally deficient performance” because appellate counsel
admitted that he “did not thoroughly review the record,” relying
solely on trial counsel’s trial file, and that he was “unaware of the
impropriety of dual representation, believing it to be common
practice.” The habeas court concluded that “[t]his ineffective
assistance excuses any procedural default.” Because the habeas
court granted Weaver relief based on its finding that Fair’s conflict
of interest adversely affected his representation of Weaver, the
habeas court granted Weaver’s petition without addressing her
remaining claims.
2. With respect to the issue of trial counsel’s ineffectiveness
arising from his conflict of interest, the Warden argues that the
habeas court erred in granting Weaver habeas relief because
Weaver has not shown that Fair’s prior representation of Tyler
16 adversely affected his representation of Weaver. We disagree.
“When reviewing a habeas court’s decision on a defendant’s
attorney conflict of interest claim, we accept the court’s factual
findings unless they are clearly erroneous, but we apply the law to
those facts de novo.” Hall v. Jackson, 310 Ga. 714, 719–20 (2021). “A
habeas court’s factual findings cannot be found to be clearly
erroneous if there is evidence in the record to support such findings.”
Smith v. Magnuson, 297 Ga. 210, 212 (2015). “We also must yield to
the judgment of the habeas court with respect to the credibility of
witnesses who testified in the habeas proceedings.” Humphrey v.
Walker, 294 Ga. 855, 860 (2014). “[A] habeas court’s determination
regarding the presence or absence of an actual conflict of interest is
a mixed question of fact and law which this Court reviews de novo.”
Edwards v. Lewis, 283 Ga. 345, 349–50 (2008). See also Johnson v.
State, 305 Ga. 475, 477 (2019) (“Whether a conflict of interest denied
a defendant his right to effective counsel is a mixed question of law
and fact, and we review the questions of law involved de novo.”).
“[F]or purposes of evaluating an ineffective assistance claim,
17 an actual conflict of interest means precisely a conflict that affected
counsel’s performance – as opposed to a mere theoretical division of
loyalties.” Adams v. State, 317 Ga. 342, 351 (2023) (cleaned up).
“Prejudice is presumed if the defendant demonstrates that the
conflict of interest existed and that it significantly affected counsel’s
performance.” Id. at 352 (cleaned up). When evaluating a claim of
ineffective assistance of counsel based on a conflict of interest, “[t]he
critical question is whether the conflict significantly affected
the representation, not whether it affected the outcome of the
underlying proceedings.” Hall, 310 Ga. at 720 (citation and
punctuation omitted). “That is precisely the difference between
ineffective assistance of counsel claims generally, where prejudice
must be shown under the two-part test set forth in Strickland v.
Washington, 466 US 668, 687 (1984), and ineffective assistance of
counsel claims involving actual conflicts of interest, which require
only a showing of a significant effect on the representation.” Id.
(cleaned up).
Joint representation alone does not amount to an actual
18 conflict of interest. See Burns v. State, 281 Ga. 338, 340 (2006). “A
common defense often gives strength against a common attack,”
Holloway v. Arkansas, 435 US 475, 482–83 (1978), and “a mere
failure to emphasize the different culpability of each co-defendant
does not always and necessarily demonstrate an actual conflict.”
Tolbert v. State, 298 Ga. 147, 154 (2015). However, “[a] significant
effect on the representation may be found, for example, where
counsel is shown to have refrained from raising a potentially
meritorious issue due to the conflict … or where one of the State’s
witnesses was a current client of defense counsel in an unrelated
criminal matter, thereby constraining counsel’s ability to cross-
examine the witness.” State v. Abernathy, 289 Ga. 603, 605 (2011).
This Court has previously held that “an actual conflict of
interest adversely affect[s] the attorney’s performance where
counsel fail[s] to pursue an alternative defense theory that is more
favorable to one defendant but which would have prejudiced a co-
defendant by shifting blame to him.” Ellis v. State, 272 Ga. 763, 766
(2000) (citation and punctuation omitted), overruled on other
19 grounds by Alexander v. State, 297 Ga. 59 (2015). See also
McFarland v. Yukins, 356 F3d 688, 709 (6th Cir. 2004) (trial counsel
who jointly represented co-defendants had actual conflict of interest
where counsel ignored “obvious and strong” defense of inculpating
co-defendant, who shared the apartment, as possessor of drugs, and
instead implausibly argued that third parties possessed drugs);
Griffin v. McVicar, 84 F3d 880, 888 (7th Cir. 1996) (“[C]ounsel may
be ineffective if the joint representation precludes an obvious and
viable alternative defense when the common defense is so
completely untenable.”); United States v. Romero, 780 F2d 981, 986–
87 (11th Cir. 1986) (defense counsel’s simultaneous representation
of multiple co-defendants presented an actual conflict of interest
where defendant had an “extremely feasible” blame-shifting defense
that “was completely foreclosed to him because it would have
implicated his codefendant and another client of his attorney”).
Here, the habeas court found that Fair’s joint representation of
Tyler and Weaver in pretrial proceedings (more specifically, his
prior representation of Tyler in this case) prevented him from cross-
20 examining Tyler at trial and made him unable to argue that Tyler
was the real culprit. Accordingly, the habeas court concluded that
Fair’s conflict of interest “impaired his ability to zealously advocate”
for Weaver at trial. Viewing the evidence in the light most favorable
to that determination, the record supports the habeas court’s finding
that Fair’s conflict of interest affected his performance as Weaver’s
trial counsel and caused him not to pursue an alternative defense
theory that would have been favorable to Weaver but unfavorable to
Tyler.
Fair conceded at the habeas hearing that medical evidence
showed that K.W. was “beat” up and that the only alternative
suspect was Tyler. Given this concession, which the habeas court
was authorized to—and at least implicitly did—credit, it is
inexplicable that, as a matter of trial strategy, conflict-free counsel
would have failed to blame, or even investigate, Tyler in any way.
See State v. Mamedov, 288 Ga. 858, 861 (2011) (concluding that if
trial counsel had “been retained and paid” by appellant alone,
conflict-free counsel “would at the very least have… considered” an
21 alternative defense theory on appellant’s behalf). Moreover, Fair
conceded that he represented both Weaver and Tyler for several
months before determining that they needed separate counsel due
to conversations with Weaver about potential defenses that
implicated Tyler. Thus, Fair recognized that there was a potential
conflict of interest arising from his prior representation of Tyler, and
his testimony confirms that Weaver had a potentially meritorious
defense that he did not pursue or even investigate.
We reject the Warden’s argument that Fair’s abandonment of
Weaver’s alternative defense without any investigation did not
result from his divided loyalties but instead from Weaver’s
instructions regarding trial strategy. As an initial matter, Weaver
denied having any recollection of discussions with Fair concerning
her alleged desire not to blame Tyler, and she expressly denied
having any conversations with Fair regarding trial strategy. Even
though Fair provided contrary testimony, the evidence was in
conflict on this issue, and the habeas court’s order implicitly found
Fair less credible than Weaver. Because the evidence was in conflict,
22 the habeas judge was authorized to discredit Fair’s explanation. See
Harris v. Upton, 292 Ga. 491, 496 (2013) (“A habeas judge sits as the
trier of facts and may reject the testimony of a witness in whole or
in part”).
In addition, the habeas court had other reasons to question
Fair’s credibility and to discredit his testimony. Specifically, Fair
testified that after consultation with Weaver, he decided to pursue
an accident defense, suggesting that K.W.’s injuries might have been
caused by co-sleeping. However, there is nothing in the record to
support Fair’s assertion that he actually pursued this defense at
trial. Weaver did not testify that K.W. slept in her bed or that she
may have accidentally injured him but instead testified that she
believed doctors may have made a “mistake” when they diagnosed
K.W.’s injuries. In addition, at the hearing on Weaver’s motion for
new trial, Fair confirmed that his trial strategy was simply that “it
wasn’t proven that [Weaver] was the one” who harmed K.W. In
short, Fair’s testimony that he decided to pursue an accident defense
is not supported by the record.
23 Given the conflicting evidence and the doubts that were cast
upon Fair’s credibility at the habeas hearing, the habeas court was
authorized to reject his testimony, credit Weaver’s testimony that
Fair did not talk with her about trial strategy, and find, as it did,
that Fair’s representation of Weaver was adversely affected by his
prior representation of Tyler. See Harris, 292 Ga. at 496.
Thus, viewing the evidentiary record in the light most
favorable to the habeas court’s finding that Weaver’s trial counsel
had a conflict of interest that prevented him from cross-examining
or blaming Tyler for K.W.’s injuries, see Tolbert, 298 Ga. at 154 n.8,
we conclude that the habeas court did not err in granting relief on
the basis that this conflict of interest adversely affected trial
counsel’s performance. See Hall, 310 Ga. at 723 (affirming habeas
court’s grant of relief where evidence failed to show that counsel’s
actions were the result of strategic decision but instead supported
finding that counsel’s performance was adversely affected by conflict
of interest); Mamedov, 288 Ga. at 860-61 (no error in habeas court’s
finding of an actual conflict of interest that adversely affected
24 counsel’s performance where trial counsel, who jointly represented
Mamedov and his co-defendant, failed to pursue or even consider an
alternative defense theory on behalf of Mamedov and instead
testified that he believed Mamedov “had no defense”).
3. The Warden argues that Weaver’s claim that her trial
counsel was ineffective due to his conflict of interest is procedurally
barred since that claim was not asserted in her direct appeal and
that the habeas court erred in finding otherwise. In support of this
argument, the Warden argues that the habeas court erred in finding
that Weaver’s appellate counsel’s failure to raise this issue in
Weaver’s direct appeal was deficient, and that the habeas court
failed to consider whether Weaver was prejudiced by that deficient
performance. For the following reasons, these claims fail.
“Georgia law directs habeas courts to consider whether a
petitioner has complied with Georgia procedural rules at trial and
on appeal and further provides that absent a showing of cause for
noncompliance with such requirement, and of actual prejudice,
habeas corpus relief shall not be granted.” Chatman v. Mancill, 278
25 Ga. 488, 489 (2004) (citation and punctuation omitted); OCGA § 9-
14-48(d). Because Weaver did not raise the issue of trial counsel
ineffectiveness based on conflict of interest in her direct appeal, the
habeas court could consider her claim “only if the ‘cause and
prejudice’ test is satisfied or in order to avoid a miscarriage of justice
where there has been a substantial denial of constitutional rights.”
Chatman, 278 Ga. at 489. The cause and prejudice test can be met
by showing that appellate counsel was constitutionally ineffective
for failing to raise a claim on direct appeal. See Humphrey, 294 Ga.
at 858 (“A common method of satisfying the cause and prejudice test
is to show that trial and direct appeal counsel rendered ineffective
assistance[.]”) (citation and punctuation omitted).
“[W]here the alleged ineffective assistance of appellate counsel
is premised upon the failure to raise ineffective assistance of trial
counsel on direct appeal, two layers of fact and law are involved in
the analysis of the habeas court’s decision.” Gramiak v. Beasley, 304
Ga. 512, 513 (2018).
To find that appellate counsel provided ineffective
26 assistance, a reviewing court must find appellate counsel’s failure to raise trial counsel’s ineffectiveness on appeal represents deficient professional conduct. Even if deficient performance of appellate counsel is shown, a demonstration of prejudice requires a showing that, had the ineffective assistance of trial counsel been raised on direct appeal, a reasonable probability exists that the outcome of the appeal would have been different. Id.
Thus, to prevail on her claim that appellate counsel’s failure to
raise the issue of trial counsel’s conflict of interest on appeal
establishes ineffective assistance of appellate counsel, Weaver must
“demonstrate that this omission represents deficient professional
conduct—that is, that it was outside the wide range of professionally
competent assistance.” Gramiak, 304 Ga. at 521 (citation and
punctuation omitted). “[R]egardless of the relative strengths and
weaknesses of the errors actually enumerated in the appeal and
those not raised, the controlling principle is whether appellate
counsel’s decision was a reasonable tactical move which any
competent attorney in the same situation would have made.”
Sullivan v. Kemp, 293 Ga. 770, 774 (2013) (citation and punctuation
omitted).
27 “[I]t is the attorney’s decision as to what issues should be raised
on appeal, and that decision, like other strategic decisions of the
attorney, is presumptively correct absent a showing to the contrary
by the defendant.” Hooks v. Walley, 299 Ga. 589, 591 (2016) (citation
and punctuation omitted). However, “[a] lawyer’s failure to raise a
claim on appeal might be unreasonable if that claim had clear and
strong merit under the law as it existed at the time of the appeal,”
Benton v. Hines, 306 Ga. 722, 724 (2019) (citation and punctuation
omitted), and a failure to raise a claim on appeal that is “based upon
[a] lack of understanding of or familiarity with the relevant law” is
not strategic. Sullivan, 293 Ga. at 774. See also Barker v. Barrow,
290 Ga. 711, 712 (2012) (the reasonableness of appellate counsel’s
conduct “is assessed from the perspective of counsel at the time of …
appeal and under the specific circumstances of the case”). Because
“[a]n ineffective assistance claim presents a mixed question of fact
and law … we accept the habeas court’s findings of fact unless
clearly erroneous but independently apply those facts to the law.”
Brown v. Baskin, 286 Ga. 681, 684 (2010) (citation and punctuation
28 omitted).
Here, appellate counsel testified at the habeas hearing that he
did not review the complete court record in preparing Weaver’s
direct appeal and was unaware of the extent of Fair’s prior
representation of Tyler. Despite being unaware of the extent of
Fair’s prior representation of Tyler, appellate counsel testified that
Fair’s initial joint representation of Weaver and Tyler was
“common” and conducted no further investigation into whether it
was improper. Appellate counsel also testified that he determined
a conflict of interest claim would not have any merit because the two
attorneys involved in the case, Fair and Stephenson, were
unaffiliated, a determination separate from whether Fair’s prior
representation of Tyler created a conflict of interest that adversely
affected his representation of Weaver. Appellate counsel also
admitted that he did not investigate Weaver’s abuse allegations and
that he did not see “the point” of Fair cross-examining Tyler at trial
because he was cross-examined by the State.
Based on the above, it is apparent that appellate counsel did
29 not make a strategic decision to omit the conflict of interest claim
from Weaver’s direct appeal. Rather, the evidence supports the
conclusion that the failure to raise this claim resulted from counsel’s
misunderstanding of the relevant law and lack of appreciation for
the fact that the claim was meritorious; thus, appellate counsel’s
actions fell below an objective standard of reasonableness. See
Sullivan v. Kemp, 293 Ga. 770, 774 (2013) (concluding that appellate
counsel’s failure to raise claim on direct appeal “fell below an
objective standard of reasonableness and establishe[d] [that]
appellate counsel’s performance was deficient”).
We reject appellate counsel’s contention that Fair had no
conflict of interest under the circumstances of this case, a position
that is refuted by controlling precedent. The evidence in the case
showed that K.W. was abused and that the only suspects were Tyler
and Weaver. Thus, Weaver was entitled to have conflict-free counsel
that was not constrained in his ability to advocate for her by placing
blame on Tyler. However, as the habeas court found, Fair was not
that counsel. Due to his prior representation of Tyler, Fair had a
30 conflict of interest that prevented him from taking any action
adverse to Tyler’s interests, and this conflict adversely affected his
representation of Weaver.
Because Fair had previously represented Tyler in connection
with this case, he was ethically precluded under the Rules of
Professional Conduct from taking any action that would place the
blame on Tyler for K.W.’s injuries. See Georgia Rule of Professional
Conduct 1.9(a) (“[a] lawyer who has formerly represented a client in
a matter shall not thereafter represent another person in the same
or a substantially related matter in which that person’s interests are
materially adverse to the interests of the former client unless the
former gives informed consent, confirmed in writing”); Georgia Rule
of Professional Conduct 1.9(c)(1) (“[a] lawyer who has formerly
represented a client in a matter … shall not thereafter … use
information relating to the representation to the disadvantage of the
former client except as Rule 1.6 or Rule 3.3 would permit or require
with respect to a client, or when the information has become
generally known”).
31 Given these facts, the evidence showing K.W. was abused, and
the parties’ stipulation at trial that Weaver and Tyler were the only
suspects, the habeas court did not err in concluding that Weaver’s
appellate counsel rendered deficient performance by failing to raise
the meritorious issue of her trial counsel’s conflict of interest during
the direct appeal. See Brown, 286 Ga. at 683 (habeas court did not
err in finding that appellate counsel performed deficiently by failing
to raise meritorious issue on direct appeal).
Having concluded that the habeas court did not err in finding
that appellate counsel performed deficiently, we turn next to the
Warden’s argument that the habeas court did not consider whether
Weaver was prejudiced by that deficient performance. In order to
show that she was prejudiced by her appellate counsel’s deficient
performance, Weaver had to show that the result of her appeal
would have been different had appellate counsel raised the issue of
trial counsel’s conflict of interest. See Humphrey v. Lewis, 291 Ga.
202, 211 (2012) (“In order to establish the prejudice prong of an
ineffective assistance of appellate counsel claim, the petitioner must
32 show a reasonable probability that the outcome of the appeal would
have been different.”) (cleaned up), overruled on other grounds by
State v. Lane, 308 Ga. 10 (2020).
Because the habeas court found that Weaver’s underlying
conflict of interest claim was in fact meritorious, it logically follows
that it concluded that Weaver would have prevailed in her appeal
had this issue been raised. The habeas court’s conclusion that this
claim has merit and that Weaver has overcome the procedural
default is an implicit finding that Weaver has shown she was
prejudiced by her appellate counsel’s deficient performance.
Accordingly, we reject the Warden’s argument that the habeas court
failed to address the issue of prejudice.
With respect to whether Weaver was in fact prejudiced by her
appellate counsel’s deficient performance, the Warden argues that
she was not. We disagree. As explained in Division 2 above, we reject
the Warden’s argument on the merits of the underlying conflict of
interest claim. As discussed in detail in that Division, the record
supports the habeas court’s finding that trial counsel had a conflict
33 of interest that adversely affected his representation of Weaver and
that trial counsel rendered ineffective assistance of counsel as a
result. Thus, Weaver’s appellate counsel’s failure to raise that
meritorious issue during the direct appeal prejudiced her because
there is a reasonable probability that the outcome of the appeal
would have been different had such a claim been raised. See
Humphrey, 291 Ga. at 211. Accordingly, Weaver has met the cause
and prejudice test necessary to overcome the procedural default. See
Humphrey, 294 Ga. at 858.
For the foregoing reasons, we affirm the habeas court’s grant
of relief to Weaver. Due to her trial counsel’s ineffective assistance
of counsel arising from his conflict of interest and her appellate
counsel’s ineffective assistance of counsel arising from his failure to
raise this issue during her direct appeal, the habeas court’s grant of
a new trial is fully supported by the record and the controlling law.
Judgment affirmed. All the Justices concur.