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: March 3, 2026
S26A0185. GIBSON v. HEAD, WARDEN.
LAGRUA, Justice.
Exzavious Gibson appeals the denial of his second petition for
writ of habeas corpus, which stemmed from his 1990 convictions for
murder and armed robbery. On appeal, Gibson contends that,
because his trial counsel labored under an obvious and
impermissible conflict by representing Gibson while also working as
a Special Assistant Attorney General, Gibson was denied the right
to effective assistance of counsel, and his convictions should be
vacated. For the reasons that follow, we affirm the habeas court’s
denial of Gibson’s petition because the record supports the habeas
court’s conclusion that Gibson failed to show that an actual conflict
of interest existed that significantly and adversely affected his trial counsel’s performance.1 See Cuyler v. Sullivan, 446 US 335, 348–50
(1980).
1. The underlying proceedings.
(a) Trial and direct appeal. In 1990, a Dodge County jury found
Gibson guilty of murder and armed robbery arising out of the
February 1990 stabbing death of Doug Coley, who operated a
grocery store in Dodge County. See Gibson v. State, 261 Ga. 313, 313
(1991). Gibson, who was 17 years old at the time of the crimes,
entered the grocery store and “killed the owner with a knife by
stabbing and slashing him thirty-nine times.” Gibson v. Turpin, 270
Ga. 855, 855 (1999). Gibson “attacked the victim with such force that
the blade of the knife broke in the victim’s neck vertebrae,” but “he
continued stabbing with the handle and blade remnant.” Id.
Following Gibson’s arrest, “Gibson confessed that he robbed and
murdered the victim because he needed money for drugs” and
because the victim had “chastised” him earlier in the day for “using
————————————————————— 1 This case was docketed in this Court to the term beginning in December
2025 and was orally argued on January 20, 2026. 2 profanity.” Id. at 855–56. “Gibson told the police that he had no
regrets about what he had done.” Id. at 856.
Following Gibson’s convictions, the trial court sentenced him
to death for murder and to life in prison for armed robbery. See
Gibson, 261 Ga. at 313. Gibson was represented at trial by Dennis
Mullis, a public defender, who also filed a direct appeal on Gibson’s
behalf.2 In 1991, this Court affirmed Gibson’s convictions and
sentences. See id.
————————————————————— 2 In his direct appeal, Gibson argued that his convictions should be reversed based on the following contentions: (1) the trial court erred by denying his motion for change of venue because he could not get a fair trial in Dodge County; (2) the trial court abused its discretion by denying Gibson’s motion to compel the State to submit its requests to charge at least 24 hours before trial; (3) the trial court erred by refusing to close the pretrial proceedings to the media; (4) the trial court erred by denying Gibson’s motion to suppress bloody money, bloody clothes, and the victim’s wallet seized from Gibson’s bedroom because there was no evidence that the arresting officer was authorized to enter the bedroom; (5) the attorney general’s response to Gibson’s attempt to subpoena information from witnesses employed by the state crime laboratory denied Gibson the effective assistance of counsel because Gibson was forced to withdraw those subpoenas after the attorney general used “bullyboy” tactics by seeking to quash the subpoenas, to assess costs, and to hold defense counsel in contempt of court for filing the subpoenas; (6) the trial court abused its discretion in denying Gibson’s motion for mistrial after the arresting officer offered testimony based on hearsay; (7) the trial court erred by admitting pre- autopsy photographs of the victim’s body; (8) the trial court abused its discretion in denying Gibson’s motion for mistrial after the State asked Gibson about how long the effects of crack cocaine lasted during the sentencing phase 3 (b) Habeas proceedings. After this Court affirmed Gibson’s
convictions and sentences on appeal, Gibson filed his first petition
for habeas corpus in the Superior Court of Butts County (the “habeas
court”) on December 20, 1995, “asserting ineffective assistance of
counsel, prosecutorial misconduct, and other claims.” Gibson, 270
Ga. at 855. After an evidentiary hearing in which Gibson appeared
pro se, the habeas court denied Gibson’s request for relief on March
11, 1997, and Gibson filed an application for a certificate of probable
cause to appeal to this Court, which the Court denied. See id.
In 2000, Gibson filed a second petition for habeas corpus,
alleging, among other things, that Mullis—his trial and appellate
counsel—had labored under a conflict of interest because, at the
time Mullis represented Gibson as a public defender, Mullis was also
working as a Special Assistant Attorney General representing the
————————————————————— of the trial; (9) the evidence was insufficient to support the verdicts in this case; and (10) the trial court’s jury instructions shifted the burden onto Gibson to justify a life sentence. See Gibson, 261 Ga. at 314–17. Seeing no merit to any of these contentions, this Court affirmed. See id.
4 Department of Transportation in highway condemnation matters—
which Gibson discovered after the proceedings on his first habeas
petition concluded. The habeas court dismissed Gibson’s second
habeas petition as successive under OCGA § 9-14-51, without
conducting an evidentiary hearing, and Gibson timely filed an
application for a certificate of probable cause to appeal to this Court.
This Court denied Gibson’s application as to all claims except his
conflict-of-interest claim. As to that claim, we remanded the case for
the habeas court to conduct an evidentiary hearing to determine if
Gibson’s conflict-of-interest claim, which was allegedly based on
newly discovered information, was procedurally barred and, if not,
if it had merit. See Gibson v. Head, 282 Ga. 156, 156 (2007)
(recounting procedural history).
Following an evidentiary hearing in September 2003, the
habeas court concluded that the conflict-of-interest claim was
procedurally barred, and it made no ruling regarding the underlying
merits of the claim. See Gibson, 282 Ga. at156. Thereafter, “[b]ased
5 on information in the trial record, this Court, on October 7, 2005,
again remanded Gibson’s case to the habeas court[3] to allow Gibson
to challenge his death sentence based on a recent decision by the
Supreme Court of the United States barring the execution of persons
who were under 18 years old at the time of their crimes. See Roper
v. Simmons, 543 US 551 (2005).” Id. On remand, the habeas court
vacated Gibson’s death sentence based on his age at the time of the
murder, but denied his other requests for relief, again concluding
that Gibson’s conflict-of-interest claim was procedurally barred. See
id. Gibson timely filed an application for a certificate of probable
cause to appeal to this Court, which was granted. See id.
On appeal, the Court concluded that the habeas court erred in
determining that Gibson’s conflict-of-interest claim was
procedurally barred because the habeas court had “failed to consider
that Gibson was entitled to presume that his trial counsel was not
laboring under an undisclosed conflict of interest,” given that “trial
————————————————————— 3 It is not clear from the record how the case was procedurally back in
this Court when we issued this remand. 6 counsel had an affirmative duty arising from several sources to
disclose his potential conflict.” Gibson, 282 Ga. at 157–58. The Court
also noted that Gibson’s conflict-of-interest claim “would not be
barred by res judicata … if it were based on facts that were not
reasonably available at the time of the habeas proceeding.” Id. at
159. In 2007, the Court remanded the case for the habeas court to
determine “the precise timing of Gibson’s discovery of the previously
undisclosed employment of his trial counsel as Special Assistant
Attorney General.” Id.
On November 28, 2023, the habeas court issued an order
denying Gibson’s second habeas petition.4 In the order, the habeas
court determined that Gibson’s conflict-of-interest claim was not
procedurally barred because “Gibson was entitled to presume that
his counsel was not laboring under a conflict of interest,” and Gibson
————————————————————— 4 Following this Court’s remand to the habeas court in 2007, see Gibson,
282 Ga. at 159, Gibson’s habeas case languished until 2023—for reasons that are not apparent in the record—when an attorney entered an appearance on Gibson’s behalf and submitted a proposed order granting Gibson’s second habeas petition. 7 “could not reasonably have raised this claim” in his first habeas
petition. As to the merits of Gibson’s conflict-of-interest claim, the
habeas court considered the evidence presented at the 2003 hearing
on Gibson’s second habeas petition, 5 as well as the remainder of the
record, and denied Gibson’s claim on the merits, concluding that
Gibson failed “to show that an actual conflict of interest existed
which significantly and adversely affected his trial counsel’s
representation of Gibson,” citing Cuyler, 446 US at 348–50, and Hall
v. Jackson, 310 Ga. 714, 720 (2021).
In denying Gibson’s habeas petition, the habeas court noted
that, prior to trial, Mullis served subpoenas on several GBI analysts,
seeking the production of information the analysts utilized in
making their findings in this case. After the subpoenas were served,
the Attorney General, representing the GBI, moved to quash the
subpoenas on the basis that they were overly broad and sought
————————————————————— 5 Mullis testified at the September 9, 2003 hearing on Gibson’s second
habeas petition. Gibson also presented testimony from Mullis’s June 27, 2003 deposition, as well as other evidence, at that hearing. 8 information that was not discoverable. The motion to quash also
requested fees and sanctions against Mullis, including a request to
hold Mullis in contempt for the allegedly frivolous nature of the
subpoenas. When the motion to quash was argued at trial, Mullis
withdrew the subpoenas, explaining that he did not want to be
required to pay sanctions or be held in contempt, even though the
trial court advised that was unlikely to occur.
The habeas court observed that Gibson’s conflict-of-interest
claim centered on Mullis’s withdrawal of these subpoenas and an
assertion that, when the Attorney General’s Office filed a motion to
quash on behalf of the GBI, Mullis withdrew the subpoenas because
he did not want to jeopardize his position as a Special Assistant
Attorney General, not because of any concern about being
sanctioned or held in contempt. Gibson also claimed that Mullis’s
decision to withdraw the subpoenas demonstrated his conflicting
loyalties and adversely affected his representation of Gibson. The
9 habeas court disagreed, concluding that the evidence in the record
did not support Gibson’s contentions.
To that end, the habeas court noted that Mullis testified at a
1996 hearing on Gibson’s first habeas petition that his reason for
withdrawing the subpoenas was strictly to avoid being sanctioned or
held in contempt, not because of any conflict in his loyalties to
Gibson. Mullis also raised the issue of the motion to quash in
Gibson’s direct appeal. See Gibson, 261 Ga. at 315–16. The habeas
court also observed that Gibson produced no evidence during the
habeas proceedings to enable the court to determine whether the
subpoenas were valid or whether the subpoenaed documents would
have contained valuable and relevant information that could have
been used in defending Gibson at trial. Additionally, Gibson failed
to present any evidence to demonstrate that Mullis withdrew the
subpoenas based on a concern that his position or income as a
Special Assistant Attorney General would be jeopardized, and as
such, this contention was “merely speculative,” particularly since
10 Mullis testified otherwise. The habeas court further concluded that,
although Mullis was working as a Special Assistant Attorney
General handling Department of Transportation cases when he was
also representing Gibson, that was at most a “potential” conflict, and
Gibson was still required to show “an adverse effect” on Mullis’s
representation by virtue of this conflict of interest, a showing Gibson
failed to make. See Cuyler, 446 US at 348–50. For these reasons, the
habeas court denied Gibson’s request for habeas relief.
2. On appeal, Gibson contends that, because Mullis labored
under an actual conflict of interest by representing Gibson while
simultaneously serving as a Special Assistant Attorney General,
Gibson was denied the effective assistance of counsel, and his
convictions should be vacated. Specifically, Gibson claims that
Mullis’s employment as a Special Assistant Attorney General
created a substantial risk that Mullis’s interest in maintaining favor
with the Attorney General would affect his simultaneous
representation of Gibson, and when Mullis’s relationship with the
11 Attorney General’s office jeopardized his duty of loyalty to Gibson,
Mullis prioritized the former by withdrawing the subpoenas he had
served upon analysts from the GBI.
“A criminal defendant in Georgia is constitutionally entitled to
the effective assistance of counsel during his trial, motion for new
trial proceeding, and direct appeal. One component of the right to
the effective assistance of counsel is the right to representation that
is free of actual conflicts of interest.” Huitron v. Toby, ___ Ga. ___
(2026), S25A0124, slip op. at 15–16 (Ga. Feb. 3, 2026) (citing Hall,
310 Ga. at 720 (quotation marks omitted)). In evaluating a criminal
defendant’s claim that “a conflict of interest worked a denial of the
effective assistance of counsel,” Tolbert v. State, 298 Ga. 147, 149–
50 (2015), this Court has consistently applied the framework from
Cuyler and required the defendant to show that “an actual conflict
of interest adversely affected his lawyer’s performance.” 6 Cuyler, 446
————————————————————— 6 See e.g., Huitron, , S25A0124, slip op. at 15–16; Dills v. Weaver, __ Ga.
__ (2026), S25A1367, slip op. at 17 (Ga. Jan. 5, 2026); Adams v. State, 317 Ga. 342, 351 (2023); Hall, 310 Ga. at 721; Moore v. State, 311 Ga. 506, 511 (2021); Tolbert, 298 Ga. at 149–50; State v. Abernathy, 289 Ga. 603, 604 (2011). 12 US at 348 (holding that, “[i]n order to demonstrate a violation of his
Sixth Amendment rights, a defendant must establish that an actual
conflict of interest adversely affected his lawyer’s performance”). See
also Adams v. State, 317 Ga. 342, 351 (2023) (holding that “an actual
conflict of interest means precisely a conflict that affected counsel’s
performance – as opposed to a mere theoretical division in loyalties”
(cleaned up)).
When we review a habeas court’s decision on a petitioner’s
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.” Dills v. Weaver, ___ Ga. ___ (2026), S25A1367, slip op. at
17 (Ga. Jan. 5, 2026) (citing Hall, 310 Ga. at 719–20 (quotation
marks omitted)). And, if there is evidence in the record to support
the habeas court’s factual findings, those “factual findings cannot be
found to be clearly erroneous.” Id. (citation omitted). “We must also
yield to the judgment of the habeas court with respect to the
credibility of witnesses who testified at the habeas proceedings.” Id.
13 (citing Humphrey v. Walker, 294 Ga. 855, 860 (2014) (quotation
marks omitted)). “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.” Id.
(cleaned up).
As reflected by the record and the findings of the habeas court,
Mullis began working as a contract public defender in 1982. In 1986,
Mullis was appointed as a Special Assistant Attorney General to
periodically handle Department of Transportation cases. In 1990,
Mullis was appointed to represent Gibson in his criminal trial, and
after Gibson was convicted of murder and armed robbery, Mullis
continued to represent Gibson in his direct appeal. During the
criminal trial, the Attorney General appeared on behalf of several
GBI analysts to whom subpoenas for records had been issued by
Mullis. The Attorney General moved to quash the subpoenas and for
other relief, and Mullis withdrew the subpoenas. At no point during
Mullis’s representation of Gibson did he disclose his appointment as
14 a Special Assistant Attorney General to Gibson and the trial court.
See Gibson, 282 Ga. at 156–58.
Assuming without deciding that these circumstances created a
potential conflict of interest on Mullis’s part, we agree with the
habeas court that Gibson failed to show that the conflict adversely
affected Mullis’s representation of Gibson. See Huitron, slip op. at
17 (concluding that, even if there was a potential conflict of interest,
the defendant failed to show that the conflict “significantly or
adversely” affected counsel’s representation of the defendant). See
also Hall, 310 Ga. at 720 (noting that, to “carry his burden of
proving” that counsel “provided ineffective assistance because
[counsel] had a conflict of interest,” the defendant “must show that
an actual conflict of interest significantly and adversely affected
[counsel’s] representation of [the defendant]” (cleaned up)).
A review of the record and our prior decisions in Gibson’s cases
support the habeas court’s conclusions that, despite any potential
conflict of interest, Mullis diligently represented Gibson at trial and
15 on direct appeal, and Mullis’s separate work as a contract Special
Assistant Attorney General for the Department of Transportation
did not impede or impair his willingness or ability to fulfill his
obligations to professionally and staunchly represent Gibson in his
criminal case. In fact, when this Court considered and denied
Gibson’s application for a certificate of probable cause to appeal the
denial of his first habeas petition in 1999, we concluded—in rejecting
Gibson’s ineffective assistance of counsel claim—that Mullis: (1)
“met with Gibson many times before trial”; (2) “investigated
Gibson’s case” and “possible defenses”; (3) “filed several discovery
motions, including a Brady motion”; (4) “successfully moved for an
independent psychological evaluation”; (5) “filed numerous relevant
pretrial motions,” including motions to suppress and a motion for
change of venue; (6) “interviewed key witnesses”; (7) “made timely
objections at trial”; (8) “invoked Gibson’s youth and his lack of a
family while growing up” and “implored the jury to spare Gibson”
during closing argument; and (9) “elected to present evidence in the
16 sentencing phase of Gibson’s youth, his remorse, and his childhood
without parents.” Gibson, 270 Ga. at 863–66. And, while the better
practice would certainly have been for Mullis to disclose his role as
a Special Assistant Attorney General to Gibson and the trial court
in compliance with OCGA § 45-15-30,7 we cannot say—given the
facts and circumstances presented in this case—that Mullis’s failure
————————————————————— 7 In pertinent part, OCGA § 45-15-30, which was materially the same
during the relevant timeframe as it is today, provides that, [n]otwithstanding that any attorney at law under independent contract to the Department of Law has been appointed or designated either specially or generally as an assistant attorney general and thus is identified with the State of Georgia as its representative for cases arising within the scope of that appointment or designation, representation of a defendant in criminal proceedings by that assistant attorney general shall not constitute a conflict of interest if that assistant attorney general provides written disclosure of such appointment or designation to the defendant prior to accepting employment by that defendant or, when a court has appointed an assistant attorney general to represent an indigent criminal defendant, disclosures to the defendant and to the court, to be reflected in the record of that court, such appointment or designation as assistant attorney general. See also 1984 Ga. Att’y. Gen. Op. No. U84-27 (directing that Special Assistant Attorneys General comply with the disclosure requirements of OCGA § 45-15- 30 in ordinary criminal cases and never represent a defendant in a death penalty case, regardless of whether the defendant might be willing to waive any potential conflict). 17 to make that disclosure adversely affected his representation of
Gibson.
With respect to the subpoenas at issue, the record supports the
habeas court’s conclusion that Gibson failed to demonstrate that
Mullis withdrew the subpoenas because of any loyalty he felt to the
Attorney General’s office or to forfeit any aspect of Gibson’s defense.
Gibson’s claim that Mullis withdrew the subpoenas because he
wanted to avoid a conflict with the Attorney General’s office, “whose
approval was essential for his job security,” is based purely on
speculation, and we have held that speculation is insufficient to
show an actual conflict of interest. See Adams, 371 Ga. at 355
(determining that a defendant’s speculation that his counsel’s efforts
and strategic choices were the result of a potential conflict of interest
could not establish an actual conflict of interest). See also Mahdi v.
State, 312 Ga. 466, 470 (2021) (concluding that the defendant’s claim
of a conflict of interest was “at best a matter of theory or
speculation,” which was insufficient to show an actual conflict of
18 interest). Moreover, while Gibson submits that Mullis admitted in
his appellate brief to this Court in 1991 that he withdrew the
subpoenas under pressure from the Attorney General’s office, see
Gibson, 261 Ga. at 315, Mullis’s testimony at the habeas hearing
belies that claim, and there is no evidence that Mullis withdrew the
subpoenas to curry favor with the Attorney General. Instead, Mullis
testified at the habeas hearing that he withdrew the subpoenas to
avoid sanctions or being held in contempt by the trial court, not
because of any divided loyalties on his part, and the habeas court
was entitled to credit Mullis’s testimony.
Gibson also contends that the habeas court erroneously based
its denial of Gibson’s habeas petition on the conflict-of-interest
standard set forth in Cuyler and that the appropriate standard to
apply in evaluating Mullis’s conflict of interest is the standard set
forth in Sallie v. State, 269 Ga. 446, 448 (1998) (providing that, when
counsel is laboring under an obvious and impermissible conflict and
the penalty is of vast enormity, there is no need to analyze the
19 adverse effect). However, Gibson offers no compelling reason why
this Court should apply the unique standard articulated in Sallie to
the conflict here, and we see none. See id. at 447–48 (holding that,
where an attorney was simultaneously employed as a defendant’s
trial attorney and “the sole judicial law clerk” in the circuit where
the defendant was being tried for murder, the conflict was “obvious”
and “completely impermissible”—especially given that the
defendant faced the death penalty—and prejudice was presumed).
The decision rendered by this Court in Sallie has been rarely
applied and is limited to its distinct factual circumstances. See
Fogarty v. State, 270 Ga. 609, 610–11 (1999) (noting that, although
we applied the “per se presumption” of prejudice standard in the
“unique situation” present in Sallie, we ordinarily apply the Cuyler
standard and focus on whether “an actual conflict of interest
adversely affected [the] lawyer’s performance”). Although this Court
later applied the Sallie standard in Howerton v. Danenberg, 279 Ga.
861 (2005), the Court did so only “under the unique facts of th[at]
20 case.” Id. at 863 (applying Sallie’s presumption-of-prejudice
standard to circumstances where an attorney had represented a
defendant in a murder trial while also representing the assistant
district attorney who was prosecuting that defendant in a separate
civil lawsuit because that dual representation was “completely
impermissible,” “undermine[d] the adversarial process[,] and
call[ed] into question the reliability of the outcome of proceedings”).
But many of us question whether Howerton was decided correctly.
And, here, based on the record before us, we readily conclude that
the unusual and egregious circumstances warranting the
application of a presumption-of-prejudice standard as set out in
Sallie and Howerton are not present, and as such, we see no reason
to deviate from our application of the Cuyler standard in this case.
See Fogarty, 270 Ga. at 610–11.
Accordingly, as explained above, Cuyler is the appropriate
standard to be applied in evaluating a conflict-of-interest claim like
Gibson’s. See Cuyler, 446 US at 348–50. And, because the habeas
21 court applied the Cuyler standard to conclude that, even if a
potential conflict existed in this case, Gibson failed to meet his
burden to show that Mullis’s representation was “significantly or
adversely” affected by the conflict—a conclusion that is supported
by the record—we conclude that the habeas court did not err in
denying Gibson’s claim for habeas relief. See Huitron, slip op. at 21–
22; Hall, 310 Ga. at 721.
Judgment affirmed. All the Justices concur, except Peterson, C.J., not participating.