McFarland v. Yukins

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 23, 2004
• Docket: 01-1360
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 McFarland v. Yukins No. 01-1360 ELECTRONIC CITATION: 2004 FED App. 0030P (6th Cir.) File Name: 04a0030p.06 James Krogsrud, Detroit, Michigan, for Appellee. ON BRIEF: Jeffrey W. Caminsky, COUNTY OF WAYNE PROSECUTOR’S OFFICE, Detroit, Michigan, for Appellant. UNITED STATES COURT OF APPEALS James Krogsrud, Detroit, Michigan, for Appellee. FOR THE SIXTH CIRCUIT _________________ _________________ OPINION PAULA MCFARLAND, X _________________ Petitioner-Appellee, - JOHN R. GIBSON, Circuit Judge. The district court1 - - No. 01-1360 granted Paula McFarland a conditional writ of habeas corpus v. - on the ground that the attorney defending McFarland against > drug charges labored under a conflict of interest because he , also represented her daughter on the same charges. The JOAN YUKINS, - Respondent-Appellant. - Warden appeals the grant of the writ, arguing that McFarland did not justify her failure to raise the conflict of interest N argument on appeal from the conviction, that the defense Appeal from the United States District Court attorney's representation of McFarland and her daughter did for the Eastern District of Michigan at Detroit. not violate McFarland's Sixth Amendment right to counsel, No. 98-70465—Victoria A. Roberts, District Judge. and that McFarland received an evidentiary hearing to which she was not entitled. We affirm the grant of the conditional Argued: September 19, 2002 writ.

Decided and Filed: January 23, 2004 McFarland was charged in Michigan state court with eleven counts of possession or possession with intent to deliver Before: DAUGHTREY, GILMAN, and GIBSON, Circuit various drugs, based on the results of a search on Judges.* November 4, 1986, of the house at 15151 Minock in Detroit, where McFarland and her daughter lived. In a locked _________________ bedroom in the southeast corner of the second floor of the house, police found the chief incriminating evidence: an COUNSEL assortment of pills and powders, blank physician's prescription pads, and physician's ink stamps. Some of the ARGUED: Jeffrey W. Caminsky, COUNTY OF WAYNE pills were found in a closet in the southeast bedroom, which PROSECUTOR’S OFFICE, Detroit, Michigan, for Appellant. also contained women's clothes; some pills and the

* 1 The Honorab le John R. Gibson, Circuit Judge of the United S tates The Honorable Victoria A. Roberts, United States District Judge for Court of Appeals for the Eighth Circuit, sitting by designation. the Eastern District of Michigan.

1 No. 01-1360 McFarland v. Yukins 3 4 McFarland v. Yukins No. 01-1360

prescription paraphernalia were found in a file cabinet in the receipts for money orders bearing Reeves's name and the room; and some pills and packets of powder were found in a 15151 Minock address, and a receipt from the Humane safe in the room. At unspecified locations in the house, Society made out to "Donna Rayford." There were women's police also found two scales; a sifter that was of the type used clothes in the closet of the southeast bedroom, but there is no in the cocaine trade and that had residue on it; a prescription evidence as to what woman they belonged to. slip for Tylenol 3 made out to Paula McFarland; and tally sheets containing prices, names, addresses and phone Fourth was petitioner, Paula McFarland. McFarland's name numbers. They also found $1423 in cash and three guns, appeared on many of the documents found in the dresser in including a homemade .22 caliber made from a pen. the southeast bedroom, such as money order receipts and a notice from the Michigan Department of Social Services. Her There were four people who could have been linked to the name also appeared on a prescription for Tylenol 3 found drugs found in the southeast bedroom. First, the only person somewhere in the house. who was actually in the house at the time of the search was a man, identified as Robert Eaton, who had a key to the front McFarland and her daughter hired one lawyer, Leroy door, but no key to the locked southeast bedroom. Daggs. At the preliminary hearing in May 1987, counselor Daggs informed the court that he was representing both Second, a man was described in the affidavit supporting the McFarland and Reeves, that he had held discussions with both search warrant as "black male, unknown, Gheri curl, dark of them about the possibility of conflict of interest, and that complexion." (Eaton did not match this description.) This they did not anticipate a conflict arising. The court informed man was seen on the stoop of the house when police were each defendant individually of her right to have separate investigating complaints received from the "Crack Hotline" counsel appointed, and both defendants stated that they about the house at 15151 Minock. The man's identity was not wished to proceed with Daggs representing them jointly. established during trial. However, during the search of the locked, southeast bedroom, police found a marriage license On April 5, 1988, the day trial was to begin, the court again for Donna Ann Reeves and Reginald Leonard Rayford. They inquired on the record whether there was any conflict of also found a briefcase in the house containing documents interest due to Daggs's joint representation of McFarland and belonging to Reginald Rayford and two letters addressed to Reeves. Daggs replied first: him at 15151 Minock. I know at the examination I did [represent both Third, McFarland's daughter Donna Reeves lived in the defendants], and I realize now this is probably a little house. Agent Michael Hawes indicated at Reeves's trial that more–as far as representation is concerned, it would the southeast bedroom was Reeves's bedroom. During the be–if I were going to make opening statements, I know investigation that led to the search, an informant had gone to I would have to make two or–in closing statements, if I the house attempting to buy drugs; the informant reported were, I would have to make two. But I think maybe in speaking to "Donna," who said that she had dilaudids, but that talking with them this morning, I don't think that they she would not sell them without seeing a "known face." feel very comfortable about the fact that–they've been Police found documents stored in the dresser in the southeast talking to outsiders who indicate that I could represent bedroom, many of which bore Reeves's name, such as the both of them at trial. marriage license for Reeves and Rayford, a number of No. 01-1360 McFarland v. Yukins 5 6 McFarland v. Yukins No. 01-1360

The court probed: "Are you presenting some defenses here In other words, are you–is a part of your defense in this that may be antagonistic in some kind of way?" Daggs case, you know, that things that might have been found answered: didn't belong to you; they might have belonged to someone else? See, there were different–I think when the officers Defendant Reeves: Yes. testified, there were different places in the house that .... certain things were found. Whether or not there is a The Court: Okay. And let me understand here what it is possibility during the course of this trial, if there was–if that you are saying, okay? Do you see any problem with those antagonistic defenses as to both of them would Mr. Daggs representing both you and Ms. McFarland? occur–I don't know. And if so, what do you think those problems are? As I said, I've never been in this situation before, your Defendant Reeves: I think I need another lawyer. He's Honor, where I've had two people at trial time, and I good, but I don't think he can handle both of us. know that sometimes things can become sticky maybe. The Court: Why do you think that; that's what I'm Maybe I would object, maybe the other attorney, if he asking. represented the other party, maybe would not or maybe .... he would and I would not. Defendant Reeves: Because I've talked with different I think maybe I could handle it, but again after talking people, and they just said I need a different lawyer. with them this morning, and the other day by telephone–this morning out in the hall–they have begun The court then questioned McFarland: to raise some problems, your Honor. I think maybe the Court should more interrogate them as to the particular Without–I'm not asking you to make any kind of a issue. statement or admissions or anything like that, but do you perceive it as part of your defense that it maybe The court commented: antagonistic in some way to the defense of Ms. Reeves? Do you understand what I'm saying? Well, I'm not concerned about any kind of problem Defendant McFarland: You Honor, I had called another that the defendants are being raised here, you know, in attorney. terms of what–if there's some kind of dissatisfaction. I'm The Court: Pardon me? just concerned about following the procedure on this, and Defendant McFarland: I had called another attorney, and so far I haven't heard anything that seems to be possibly he was too expensive, okay, to represent me, because I antagonistic defenses here. feel like it may come to a point where we do need two attorneys, and that he was too expensive, so I just had to Despite its impression that Daggs had not established a leave that alone. But I feel that maybe it's best that we conflict, the court inquired of Reeves: do need two. I mean I have no doubt that Mr. Daggs is not a good Do you see that there is–that you are raising some issues attorney, but I think that probably, you know, we need or defenses that may be in a sense antagonistic to those one each. that are raised by Ms. McFarland, or are you aware of what that might be in any way? No. 01-1360 McFarland v. Yukins 7 8 McFarland v. Yukins No. 01-1360

The court expressed its concern that the defendants had taken southeast bedroom was sufficient to establish a possessory no action to ask for appointment of counsel until the day of interest in the drugs. Accordingly, he found Reeves guilty. trial. As the defendants were prepared to waive their rights to a jury trial, the court determined that the proper course was to At McFarland's trial, in contrast to Reeves's, when Baaki sever the cases, but proceed to trial with Daggs representing testified about the documents found in the southeast bedroom, each defendant in front of different judges. he identified a notice addressed to McFarland at 15151 Minock, a receipt signed by McFarland, and 26 receipts for The Trials money orders, of which 23 bore McFarland's name and three bore the name "Brenda something." He identified no The government's evidence at the respective trials of documents bearing Reeves's name or Reeves's putative Reeves and McFarland differed. At Reeves's trial, the husband's name, nor did Daggs ask him about any such government introduced the documents that tended to link documents on cross examination. Officer Deborah Steward Reeves to the southeast bedroom, and at McFarland's trial, it identified a prescription slip for Tylenol 3 in the name of introduced documents linking McFarland to the room. At Paula McFarland, but she did not say where the slip was Reeves's trial, Officer Dennis Baaki testified about searching found. Officer Steward testified that $1423 in cash was found the southeast bedroom, and he identified Reeves's and in the "far bedroom, not the south east bedroom." Steward Rayford's marriage license; money orders signed variously by stated that the pen gun was found in the southeast bedroom. Reeves, McFarland and a Brenda Retmer; the Humane When Steward was describing the investigation that led to the Society receipt made out to "Donna Rayford"; a money order issuance of the search warrant, she did not mention the fact from an insurance company to Reeves; and a "document from that the crack hotline telephone complaints named "Donna" the State of Michigan"–all of which were found on the dresser or that the confidential informant had talked to Donna and in the southeast bedroom. Also at Reeves's trial, Agent Donna had said she had dilaudids. Daggs did not bring out Hawes testified that police had received Crack Hotline these facts on cross examination. Agent Michael Hawes telephone complaints about a "Donna." Hawes also referred testified that in the second bedroom, which he searched, a to the southeast bedroom as Reeves's room and the second purse was found with the pen gun inside and also with a letter bedroom as McFarland's. Daggs argued in Reeves's case, or card addressed to Paula McFarland. However, in contrast "[M]ost of these narcotics were taken out of one room and not to his testimony at Reeves's trial, Hawes did not describe the out of the other room . . . [N]o one knows exactly which room southeast bedroom as Reeves's and the second bedroom as Donna Reeves was in because, if it were shown, I mean only McFarland's. Hawes did describe the telephone complaints as by mail and letters but other things. . . ." Daggs argued that having identified "Donna, no last name, as being the person the narcotics could have belonged to Eaton or the other man who was dealing out of the premises." Daggs did not present who was not at the house at the time of the search. The judge any witnesses for McFarland's case. trying Reeves found that Eaton did not have a key to the southeast bedroom and that Reeves was linked to the At McFarland's trial, Daggs's summation developed the bedroom by the documents found there that bore her name. theory that the narcotics could have belonged to one of the The judge specifically noted that possession did not have to two men, Robert Eaton or Reginald Rayford, but Daggs never be exclusive, but could be joint. The judge found that the mentioned the evidence that the locked, southeast bedroom evidence that Reeves had possession and control of the was Reeves's room. To the contrary, he appeared to concede that it was McFarland's room: No. 01-1360 McFarland v. Yukins 9 10 McFarland v. Yukins No. 01-1360

So, and we–I'm assuming if we had two men living there You–you would like the Court to conclude from all of at the same time we had two women they were probably the evidence, including the fact that the pen gun was maybe sharing bedrooms so how can we say that Paula found in this defendant's purse, that she was involved or McFarland would be guilty of possession and control of had constructive possession. I'm going to go back over narcotics and not the person maybe who was sharing the the evidence as I recall it, but my recollection is that the bedroom with her. That person could have just as easily pen gun was found in a purse in a different bedroom brought those pills in there. The same with Donna from where the drugs were found? Reeves. Evidently they indicated somewhere in here, The prosecutor: I think that's accurate. well, maybe that was in the other case. I'm getting The Court: And also that the drugs were found in a confused, that they introduced a marriage license of–I bedroom where there were was [sic] women's clothing don't think it was in this case, I'm not sure but there was and two women living in the house? a marriage license showing Donna Reeves was married The prosecutor: There's been no direct testimony that to this man Mr. Rayford . . . . Donna Reeves lived there. The Court: Okay. When Daggs touched on the investigation leading to the .... issuance of the warrant, Daggs not only failed to point out The Court: And there was no evidence about what else that it was Donna Reeves, not McFarland, who engaged in the was found in the bedroom where the purse was found? conversation about dilaudids with the informant, but he The prosecutor: Correct. actually gave the impression that it was McFarland: (Emphasis added.) Now they couldn't–they weren't successful making any buys. They says some white lady came to the door, well Later, on April 21, when the trial judge made her findings, so what? . . . But there wasn't any buy made. So how can she had apparently forgotten that McFarland's purse was you associate either–I mean Miss Paula McFarland with found by Agent Hawes in the second bedroom; instead, she anything. I mean they haven't, all they have is her name relied on the testimony of Officer Deborah Steward, whose on something that she lives there. Well, we don't deny role was not to search the house, but to catalog the evidence that. But if she's to be charged with this and the other found by the searchers: "[Officer Steward] placed on her people who lived there, the two black males, they weren't return a home made .22 caliber pen gun found from the purse charged. taken from the south east bedroom." The trial judge later made a contradictory finding that Agent Michael Hawes In his summation, the prosecutor reviewed the documentary found the pen gun "in a purse in the upstairs bedroom at the evidence with McFarland's name on it found in the southeast end of the hall, and there was a letter in that purse and that bedroom. He said, "So it's pretty clear to me from that letter was addressed to Paula McFarland." The judge found evidence that the occupants of that bedroom were involved in McFarland guilty, but she remarked: the narcotic trade and it's pretty clear Mr. Eaton was excluded from that [because he had no key to the southeast bedroom]." The only thing that I–I have to tell you this, Mr. Daggs, (Emphasis added.) The trial court interrupted: in all honesty. I thought about it, I almost was ready to find not guilty because I did not think at first blemish No. 01-1360 McFarland v. Yukins 11 12 McFarland v. Yukins No. 01-1360

that if you had two women living in the house you can leave to appeal to the Michigan Court of Appeals and narrow it down but -- Michigan Supreme Court, People v. McFarland, 573 N.W.2d Mr. Daggs: That's my thought too. 617 (Mich. 1997), on the ground that the claim for relief The Court: I went back over the evidence and I was could have been raised on appeal and McFarland did not convinced beyond a reasonable doubt. show good cause for her failure to do so. Michigan Criminal Rule 6.508(D) forecloses review of claims a defendant could McFarland was convicted on ten of the eleven counts and have, but did not, raise on appeal, unless the defendant shows sentenced to various concurrent terms, including twenty to cause and prejudice for the default. thirty years for possession with intent to deliver 225-650 grams of Oxycodone. Habeas Proceedings

Appeals and State Post-Conviction Proceedings McFarland filed this federal habeas corpus proceeding in 1998, arguing (among other things) that she was entitled to McFarland and Reeves both appealed to the Michigan relief because the trial court failed to inquire into the Court of Appeals, and both were represented by Attorney possibility of a conflict of interest resulting from trial Robert F. Mitchell. Mitchell raised seven points on appeal, counsel's joint representation of Reeves and McFarland; that including a challenge to the sufficiency of the evidence, a trial counsel's conflict of interest adversely affected his challenge to the sufficiency of the affidavit supporting the representation of McFarland; that trial counsel's deficient search warrant, and an argument that amendments to the performance affected the outcome of her trial; and that Michigan Controlled Substance Act should apply appellate counsel was ineffective in failing to raise trial retroactively to McFarland's case. Counsel did not argue that counsel's deficiencies in McFarland's direct appeal. The McFarland had received ineffective assistance of counsel, nor Warden raised the defense that McFarland's procedural did he mention the possibility of a conflict of interest. The default in failing to raise ineffectiveness of trial counsel on Michigan Court of Appeals consolidated Reeves's and her direct appeal was an independent and adequate state McFarland's cases and affirmed the convictions, but ground supporting the state courts' denial of postconviction remanded for resentencing under the amendments to the relief. Controlled Substance Act. On remand, McFarland's sentence was reduced from twenty to thirty years to ten to thirty years. The district court held that "M[ichigan] C[riminal] R[ule] The Michigan Supreme Court denied leave to appeal. 6.508(D)(3) is not an independent and adequate state rule." Order of May 11, 1999, slip op. at 10. Therefore, the district McFarland then filed a motion for postconviction relief in court held that McFarland's failure to raise the ineffective the Michigan courts, raising the ineffective assistance of trial counsel and of appellate counsel for failing to argue that trial counsel was ineffective.2 The motion was denied, as was McFarland had attempted to raise the issue. Transcript of Hearing of February 15 , 200 1 at 11, 18 . M oreo ver, McFarland 's Application for 2 Leave to Appeal the denial of the postconviction motion shows that The record before us does not contain the postconviction motion McF arland raised the ineffective assistance of trial counsel, that she itself, but the district court found that the motion attempted to develop the offered the ineffectiveness of appellate counsel as cause for her failure to facts material to the ineffective assistance of counsel claims, and the raise the argument about trial counsel, and that she sought an evidentiary W arde n's counsel con ceded at a hearing befo re the district court that hearing. No. 01-1360 McFarland v. Yukins 13 14 McFarland v. Yukins No. 01-1360

assistance of trial counsel on direct appeal presented no McFarland had shown cause and prejudice excusing her procedural obstacle to reaching the merits on habeas. Id. at failure to raise the conflict of interest argument on appeal 11. On the merits, the district court first held that a defendant from the conviction. Id. at *3. is entitled to relief without proof of prejudice whenever a trial court "is or should be aware of a potential conflict" of interest The cause and prejudice McFarland offered to excuse her and the court nevertheless fails to take adequate steps to default was ineffective assistance of appellate counsel in ascertain whether separate counsel are needed. Id. at 12. failing to argue the ineffective assistance of trial counsel. Her The court held that McFarland was entitled to relief according claim of ineffectiveness of appellate counsel rested on two to this principle because she objected before trial to having to theories: first, appellate counsel had also labored under a share counsel with Reeves and because the trial court should conflict of interest because he represented both McFarland have known a serious conflict existed after Daggs explained and Reeves, and second, appellate counsel had simply failed that the question at trial would be who had possession of to raise her strongest argument, which showed that he made drugs found in different parts of the house. Id. at 13. The an unreasonable error and that the error caused her to lose her district court held that the trial court's failure to investigate the appeal. conflict and assure that McFarland received assistance of a lawyer entirely loyal to her violated McFarland's Sixth The district court held an evidentiary hearing at which Amendment rights. Id. at 13-14. Alternatively, even without McFarland called appellate counsel, who testified to almost the rule granting relief without a showing of prejudice, the nothing of usefulness to either side because he had district court held that McFarland was entitled to relief relinquished his files to Reeves and he had no independent because her counsel labored under an actual conflict of recollection of what he had done in the case or why he had interest adversely affecting his performance. Id. at 16. The done it. court found that Daggs's decision to present a common defense seeking to exonerate both Reeves and McFarland Nevertheless, the district court found that appellate made no strategic sense at all, since Reeves and McFarland counsel's assistance had indeed been ineffective because he were tried separately. Furthermore, the court found that had unreasonably failed to raise the trial counsel's conflict of Daggs's failure to introduce any evidence pointing to Reeves's interest and, had he done so, McFarland would have won her possession of the drugs, even the mere fact that Reeves lived appeal. Order of February 22, 2001, slip op. at 11-12. in the house, showed that his representation of McFarland Therefore, the district court held that McFarland's failure to was adversely affected by his loyalty to Reeves. Id. at 17. raise the issue on appeal had been excused and the court was The court therefore granted McFarland the writ conditionally, authorized to reach the merits, as it had done in its first order allowing the state the option of affording her a new trial granting the writ. The court reaffirmed its earlier order within ninety days of the decision. Id. at 19. granting McFarland a conditional writ of habeas corpus. Id. at 13. We reversed because the district court's procedural ruling was incorrect. McFarland v. Yukins, No. 99-1659, 2000 WL On appeal, the Warden argues that McFarland should not 1290125 (6th Cir. Sept. 5, 2000) (unpublished). We have been allowed to have the evidentiary hearing at which determined that the procedural default cited by Michigan she tried to prove that her appellate counsel's ineffectiveness courts was an independent and adequate state ground, so it caused her to default her claim of trial counsel's would be necessary for the district court to ascertain whether ineffectiveness. The Warden also argues that the appellate No. 01-1360 McFarland v. Yukins 15 16 McFarland v. Yukins No. 01-1360

counsel's representation of McFarland was not ineffective a constitutional right to counsel at the procedural stage at because even if counsel had raised her claim about her trial which the alleged attorney error occurred. Coleman v. counsel, McFarland would not have won her appeal on that Thompson, 501 U.S. 722, 752 (1991). The failure to raise claim. Finally, the Warden argues that the trial counsel's ineffectiveness of trial counsel occurred on McFarland's first representation was not affected by an actual conflict of appeal of right, at which stage she enjoyed a constitutional interest and that the trial court had no obligation to do right to counsel. Evitts v. Lucey, 469 U.S. 387, 396 (1985). anything more than it did to safeguard McFarland's right to effective counsel. McFarland must show that her appellate counsel's failure to raise the ineffectiveness of trial counsel rose to the level of a I. constitutional violation under Strickland v. Washington, 466 U.S. 668 (1984). According to Strickland, a defendant's Sixth We review the district court's legal conclusions de novo and Amendment rights are violated if (1) the defendant's attorney its factual findings for clear error. Lucas v. O'Dea, 179 F.3d commits an error "so serious that counsel was not functioning 412, 416 (6th Cir. 1999). McFarland's ineffective assistance as the 'counsel' guaranteed the defendant by the Sixth of counsel claim presents a mixed question of fact and law, Amendment," id. at 687, and (2) counsel's deficiency so which is therefore subject to de novo review. Id. The district prejudiced the defense that there is a reasonable probability court's determinations of questions of procedural default and that, but for counsel's performance, the result of the cause and prejudice are also subject to de novo review. Id. proceeding would have been different, id. at 694. Counsel's failure to raise an issue on appeal could only be ineffective Logically, we must decide the procedural question of assistance if there is a reasonable probability that inclusion of whether McFarland is entitled to pursue her claim of the issue would have changed the result of the appeal. See ineffective assistance of trial counsel before we reach the Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001), cert. merits of that claim. However, the nature of the procedural denied, 535 U.S. 940 (2002). Thus, in order to decide arguments in this case requires us to decide at the outset whether McFarland can present her claim of ineffective whether that underlying claim has merit, as we will explain. assistance of trial counsel, we have to decide whether there is a reasonable probability that the claim would have prevailed The Warden argues that McFarland is not entitled to raise at the time counsel failed to raise it. Cf. Lucas, 179 F.3d at trial counsel's effectiveness on federal habeas because she 420 (counsel could be ineffective for failing to raise argument neglected to raise the claim on her direct appeal, as required that would have been overruled at the time it was omitted, if by state procedural rules. McFarland's answer to the a change in law was foreshadowed). We consider this Warden's procedural defense is that her claim of trial question in section II, infra. counsel's ineffectiveness was so strong that her appellate counsel's failure to raise it shows she also received ineffective If there is a reasonable probability that McFarland would assistance of counsel on her state appeal. Ineffective have prevailed on appeal had the claim been raised, we can assistance of counsel can supply the cause that, together with then consider whether the claim's merit was so compelling prejudice, would excuse a procedural default. Murray v. that appellate counsel's failure to raise it amounted to Carrier, 477 U.S. 478, 488 (1986). In order to show ineffective assistance of appellate counsel that would excuse ineffective assistance of counsel excusing a procedural McFarland's procedural default. See Section III, infra. Along default, it is first necessary to establish that the defendant had the way, we must decide whether the district court erred in No. 01-1360 McFarland v. Yukins 17 18 McFarland v. Yukins No. 01-1360

allowing McFarland the evidentiary hearing at which interests and the trial court fails to investigate the conflict, a appellate counsel was questioned about how he selected the defendant is entitled to automatic reversal without issues to be raised on appeal. See Section IV, infra. demonstration of prejudice. Harris v. Carter, 337 F.3d 758, 761 (6th Cir. 2003). The reason for this automatic reversal If ineffective assistance of appellate counsel excused the rule is that "[j]oint representation of conflicting interests is failure to raise ineffectiveness of trial counsel on appeal and suspect because of what it tends to prevent the attorney from if trial counsel was constitutionally ineffective, our inquiry is doing." Holloway, 435 U.S. at 489-90. The record will still not concluded. Because McFarland's habeas claim is ordinarily not memorialize mistakes of omission as it does governed by the Antiterrorism and Effective Death Penalty affirmative instances of trial error, id. at 490-91, so for courts Act, Pub. L. No. 104-132, Tit. I, § 104, 110 Stat. 1218 (1996), to evaluate the existence and effect of such omissions would known as the AEDPA, if her claim of ineffective assistance entail "unguided speculation." Id. at 491. Moreover, of trial counsel was adjudicated on the merits in state court, “counsel’s conflicting obligations to multiple defendants she can only receive federal habeas relief if the state ‘effectively sea[l] his lips on crucial matters,’” thus adjudication of her claim was contrary to or involved an preventing counsel from making an adequate record to unreasonable application of clearly established federal law establish prejudice. Mickens v. Taylor, 535 U.S. 162, 168 embodied in decisions of the Supreme Court or else the state (2002) (quoting Holloway, 435 U.S. at 489-90). Although adjudication involved an unreasonable determination of the this evidentiary concern exists whenever counsel is subject to facts. 28 U.S.C. § 2254(d) (2000). We consider the divided loyalty, the Holloway automatic-reversal rule does application of the AEDPA standard to McFarland’s case in not apply to every such case; instead, it is limited to situations Section V, infra. where "defense counsel is forced to represent codefendants over his timely objection, unless the trial court has determined II. that there is no conflict." Mickens, 535 U.S. at 168. Sometimes defendants prefer joint representation, even if The Sixth Amendment provides: “In all criminal there is the possibility of a conflict. See Wheat v. United prosecutions, the accused shall enjoy the right . . . to have the States, 486 U.S. 153, 159 (1988); Serra v. Mich. Dept. of Assistance of Counsel for his defence.” At the time of Corrections, 4 F.3d 1348, 1350-54 (6th Cir. 1993). Limiting McFarland's appeal from her conviction in 1988-89, there the Holloway automatic-reversal rule to cases in which a were three possible routes to establishing that her trial counsel defendant has timely objected to the conflict recognizes that provided ineffective assistance violating her Sixth defendants have a countervailing interest in being allowed to Amendment right to counsel. To determine whether appellate proceed with counsel of their own choice, while also ensuring counsel's assistance was ineffective, we must first ascertain that the defendant cannot have it both ways by asking for whether there is a reasonable probability that McFarland reversal or habeas corpus on the basis of representation that would have won her appeal on any of these three theories. he or she acceded to during trial. See Smith v. Anderson, 689 F.2d 59, 64-65 (6th Cir. 1982) ("Because certain benefits of A. a single defense counsel may be imagined, a different and Under the rule of Holloway v. Arkansas, 435 U.S. 475 more searching review [than that prescribed in Holloway] is (1978), when a defendant or his counsel voices a timely mandated when the defense is silent until the appropriate objection to joint representation of clients with antagonistic occasions for objecting have passed." (citations omitted)). No. 01-1360 McFarland v. Yukins 19 20 McFarland v. Yukins No. 01-1360

McFarland's case presented the factors that make it This court recently affirmed the grant of habeas under the obligatory under Holloway for the trial court to investigate. Holloway rule in Harris v. Carter, 337 F.3d 758 (6th Cir. First, Daggs's representation of Reeves and McFarland was 2003), a case in which one lawyer, Evans, represented both the kind of joint representation covered by the Holloway rule. the petitioner, Harris, and a co-defendant, Payton, who was We have distinguished among the different situations in called as a witness and incriminated Harris at trial. Harris's which a lawyer's representation of various clients and Payton's cases were originally joined for trial, but the trial compromises his duty of loyalty: "joint and dual court severed them, sua sponte, on the day of trial. Payton representation refer to simultaneous representation occurring had already been convicted, but not sentenced, when Harris's in the same proceeding, while multiple representation refers trial began. Id. at 759. When Evans learned that Payton to simultaneous representation in separate proceedings." would be called to testify at Harris's trial, he asked that United States v. Moss, 323 F.3d 445, 456 n.15 (6th Cir.), cert. Payton be appointed separate counsel. Id. at 759-60. The denied, 124 S. Ct. 303 (2003).3 "Successive representation trial court denied the request and forced counsel to proceed. occurs where defense counsel has previously represented a The state courts held that "Holloway was inapplicable to co-defendant or trial witness." Id. at 459. In Mickens, the [Harris's] case because Harris and Payton were not tried Supreme Court recently noted it has never applied the jointly and . . . because Harris and Payton's separate trials heightened protections from its conflict of interest minimized the risk of conflict and Payton had little need for jurisprudence to cases of successive representation. 535 U.S. Evans' continued representation." Id. at 763. We disagreed. at 176 (discussed in Smith v. Hofbauer, 312 F.3d 809, 816 We held that the state decision condoning the joint (6th Cir. 2002), cert. denied, 124 S. Ct. 441 (2003)). representation over the petitioner's objection without inquiry by the trial court was contrary to Holloway, even though the lawyer's two clients were not tried together. Id. at 764. At the time the trial court ruled on the Holloway issue, Daggs was representing two co-defendants joined for trial. This is the prototypic Holloway situation and so passes the threshold of eligibility for the Holloway rule. Whether the severance on the day of trial fulfilled the trial court's obligation under Holloway is discussed below.

3 At this stage in our analysis, we examine the merits of the ineffectiveness-of-trial-counsel-issue only to decide if appellate counsel ought to have raised that issue on direct appeal. We recognize that new law made in cases decided after the 1988-89 period during which McFarland 's appeal was pending is not relevant to the question of whether McFarland 's appellate counsel should have m ade a certain argument in her appeal in 198 8-89 . But see Lucas v. O'Dea, 179 F.3d 41 2, 420 (6th Cir. 1999) (taking into account future developments that were foreshadowed at time of representation). W e cite later-decid ed ca ses only for their assistance in analyzing the law as it existed in 19 88-8 9. No. 01-1360 McFarland v. Yukins 21 22 McFarland v. Yukins No. 01-1360

Second, McFarland voiced an objection4 to having to share the question of who in the house possessed the drugs was the an attorney with Reeves. In Mickens, the Supreme Court source of a conflict. The court asked: "[I]s a part of your interpreted Holloway as applying only where there has been defense in this case, you know, that things that might have a timely objection to conflicting representation. 535 U.S. at been found didn't belong to you; they might have belonged to 168. In this case, Daggs initially informed the trial court that someone else?" Reeves answered: "Yes." his clients were uncomfortable with him representing both of them at trial. The court asked whether there would be A mother and daughter were charged with possession of antagonistic defenses. Daggs's response was equivocal, but drugs found in the house where both were living. They he did point, albeit cryptically, to the issue of who possessed indicated that they would defend themselves on the theory the drugs based on the location of the drugs in the house: that "someone else" owned the drugs and that they did not "See, there were different–I think when the officers testified, want to be represented by the same lawyer at trial. This is there were different places in the house that certain things clear notice to the court of a concrete conflict of interest, were found. Whether or not there is a possibility during the sufficient to bring the case within the Holloway rule. course of this trial, if there was–if those antagonistic defenses Holloway does not require counsel to disclose trial strategy or as to both of them would occur–I don't know." to breach his duty of loyalty to either client in order to substantiate the existence of a conflict, United States ex rel. After hearing from Daggs, the court inquired of Reeves and Zembowski v. Robertis, 771 F.2d 1057, 1063 (7th Cir. 1985), McFarland individually whether they thought there was a as Daggs would have done had he suggested to the court conflict. Both stated that they wanted separate lawyers. before which both Reeves's and McFarland's cases were then Moreover, McFarland stated that she had tried to hire separate pending that it was Reeves's room where the drugs were counsel and could not afford to do so. Reeves confirmed that found. See Smith, 689 F.2d at 64 n. 5 ("[W]e need only note the thorny issues raised by a judge's inquiry of counsel pertaining to concerns and problems in his defenses, 4 This Circuit has interpreted Holloway to apply when "a defendant especially since the judge may be the trier of fact and may or defense counsel makes a timely objection to joint representation based impose sentence upon his clients if conviction results."). on an asserted conflict of interests." Ha rris, 337 F.3d at 761 (em phasis added); Mo ss, 323 F.3d at 455 ("Indeed, where the defen dan t or his Third, the objection was timely. McFarland's objection counsel objects to the conflict prior to, or during trial, the trial court must came before the beginning of trial. "[A] conflict of interest inquire as to the extent of the conflict or subject any subsequent conviction to automatic re versal."); Sm ith, 689 F.2d at 65 ("W hen the objection is timely not only when it is raised before trial, but defendant, individually or through his legal repre sentative, fails to raise also when it is raised during the course of the trial." Harris, his concern for a conflict in a timely fashion," an actual conflict of interest 337 F.3d at 764 (citing Holloway, 435 U.S. at 495 n.4 must be established to warrant relief). W e are aware of a district court (Powell, J., dissenting)); accord Smith, 689 F.2d at 62 holding that the rule in Holloway does not ap ply when a defendant (lawyer's objection on day of trial timely under Holloway himself, rather than his co unsel, objects to the multiple representation. Riley v. South Carolina, 82 F . Supp. 2d 474 , 481 (D.S .C.), appeal where government moved to consolidate two cases at last dismissed, 225 F.3d 655, 2000 WL 1009026 (4th Cir. 2000) moment); United States ex rel. Ballard v. Bengston, 702 F.2d (unpublished). It makes little sense to deny effect to the objection of the 656, 663 (7th Cir. 1983) (motion one week before trial defendant where his counsel was negligent or worse in tolerating a timely). Holloway specifically preserves the trial court’s conflict of interest. However, we need no t plumb the depths of this issue, power to deal with defendants who make untimely motions since Daggs himself brought the con flict issue to the trial court's attention and the defendants then elaborated on the issue first raised by counsel. for separate counsel in order to cause delay. 435 U.S. at 486- No. 01-1360 McFarland v. Yukins 23 24 McFarland v. Yukins No. 01-1360

87. However, courts interpreting Holloway have recognized Holloway is limited to the duty to inquire about the conflict, that the existence and extent of a conflict may only become and that once inquiry has shown a possible conflict exists, the clear as events unfold. Trial courts may not rigidly insist on duty to rectify the situation is judged under the actual conflict objection a certain amount of time before trial when standard, rather than the automatic-reversal rule of Holloway. circumstances have prevented counsel or the defendant from United States v. Levy, 25 F.3d 146, 154 (2d Cir. 1994). It speaking up earlier. See Harris, 337 F.3d at 764; Smith, 689 makes little sense to say that the burden of proving a Sixth F.2d at 62; Bengston, 702 F.2d at 663. McFarland attempted Amendment violation increases as soon as the trial court's to explain to the trial court the reason for her delay in inquiry shows that a possible conflict exists, even though the objecting–that she had tried to hire a separate attorney, but court fails to respond appropriately to the conflict. The Tenth had not had enough money. The trial court did not reject this Circuit has reasoned that unless the trial court's duty upon explanation, but instead severed the cases for trial. timely objection "encompasses a sound resolution of the conflict problem," the "inquiry mandated by Holloway would The Warden contends that McFarland's objection was be an empty ritual." Selsor v. Kaiser, 81 F.3d 1492, 1503 untimely and therefore "forfeit[ed] as a matter of state law," (10th Cir. 1996). We view the Tenth Circuit's position as citing People v. Jones, 423 N.W.2d 614 (Mich. Ct. App. more consistent with Holloway, and accordingly we look to 1988). Jones does not involve a conflict of interest and see whether the trial court affirmatively obviated the conflict merely concludes that Jones's request for substitute counsel by its response of severing the trials. was untimely, without even revealing when the motion was made. Even if Jones gave us a state timeliness rule we could The Supreme Court has observed that providing separate apply, which it does not, Jones does not purport to interpret trials significantly reduces the potential for conflict of interest the requirements of federal law as set forth in Holloway, from joint representation. See Burger v. Kemp, 483 U.S. 776, which is the relevant question. 784 (1987) (quoting Cuyler v. Sullivan, 446 U.S. 335, 347 (1980)). Here, though the trials were separate, Daggs was The question remains as to whether the trial court still actively involved in Reeves's trial when he tried discharged its duty under Holloway by its inquiry and by McFarland's case. Reeves and McFarland were tried before severing Reeves's and McFarland's cases. The various different judges, beginning on April 5-6 and April 7, 1988, Circuits have somewhat different views concerning the nature respectively. Both trials were continued after the presentation and extent of the trial court's duty under Holloway. In of several witnesses, to wait for Agent Hawes, who was Holloway the trial court violated the defendants' rights when, unavailable when the trials started and who testified on after timely objection by defendants' counsel, "[t]he judge April 11 in both cases. The April 11 hearing in McFarland's then failed either to appoint separate counsel or to take case began at 8:50 a.m. and ended at 9:25 a.m. The last adequate steps to ascertain whether the risk was too remote to evidence and arguments in Reeves's case also occurred on warrant separate counsel." 435 U.S. at 484. The Tenth April 11, 1988, but no time of day is noted. Since Daggs was Circuit has held that this language outlines a duty (1) to present at both hearings that day, we can infer that obviate the risk by substituting conflict-free counsel or McFarland's happened first. McFarland's trial was then allowing the defendant to waive the conflict, or (2) to continued to April 21, when the court made its findings. affirmatively establish that there is no conflict. See United Thus, Daggs was still actively involved in representing States v. Gallegos, 108 F.3d 1272, 1282 (10th Cir. 1997). Reeves during McFarland's trial. Though his actions in The Second Circuit has held that the trial court's duty under McFarland's case were not automatically before the trier of No. 01-1360 McFarland v. Yukins 25 26 McFarland v. Yukins No. 01-1360

fact in Reeves's case as they would have been in a joint trial, and counsel represented to the court that severance would still any evidence or argumentation he developed against eliminate any conflict. Accord Wilson v. Morris, 724 F.2d Reeves would instantly be made available to the prosecutor 591, 594 (7th Cir. 1984) (en banc) (counsel did not object for use in Reeves's case. For instance, although in hindsight except to refer to "potential conflict which could arise," but we know that Hawes would suggest in Reeves's case that the which would be remedied by severance; cases severed for southeast bedroom was Reeves's, Daggs did not have the trial, and Holloway not applicable). In contrast to Mavrick, luxury of knowing that in advance. If he had brought this out McFarland objected to the multiple representation, and she in cross-examination in McFarland's case, for all he knew he certainly did not lead the court to believe that she considered might have been developing evidence the prosecutor had not her objection obviated by the severance. yet seized on, which might have helped convict Reeves. We conclude that if McFarland's appellate counsel had In Harris v. Carter, we held that severance did not obviate raised the issue of trial counsel's conflict of interest in the conflict, even though Payton, one of the lawyer's two McFarland's state appeal, McFarland's conviction would have clients, had already been tried when he was called as a been reversed under the Holloway automatic-reversal rule. witness in Harris's case. Had the lawyer shown that Payton was lying at Harris's trial, he would have exposed Payton to B. perjury charges and revealed confidences from Payton. 337 F.3d at 762. The lawyer's continuing duty to Payton hobbled Under the rule of Cuyler v. Sullivan, 446 U.S. 335 (1980), him in discharging his duty to Harris, and the trial court was when an attorney's representation of multiple defendants, bound under Holloway to recognize the lawyer's objection though not objected to at trial, results in an actual conflict of and look into the conflict the lawyer pointed out. Id. at 764. interest that adversely affects the attorney's performance, the Similarly, in this case, had Daggs attempted to exonerate defendants' Sixth Amendment rights have been violated, even McFarland by showing that Reeves controlled the southeast without a showing that the conflict caused the defendant to bedroom, he would have compromised his duty to Reeves. lose his or her case. Id. at 349-50 ("Thus, a defendant who shows that a conflict of interest actually affected the adequacy The Warden relies on United States v. Mavrick, 601 F.2d of his representation need not demonstrate prejudice in order 921 (7th Cir. 1979), for the proposition that severance of to obtain relief."). McFarland's and Reeves's trials cured the conflict and rendered Holloway inapplicable. But in Mavrick, the We have historically characterized Sullivan as requiring defendants did not object to the conflict of interest, and when both "actual conflict" and "effect on representation" to the trial court brought up the subject, counsel reported that the establish a violation of the Sixth Amendment. Thomas v. defendants did not want to be represented by separate counsel Foltz, 818 F.2d 476, 481-82 (6th Cir. 1987). To prove that and that severance of their trials would eliminate the conflict. counsel’s performance was affected by an "actual conflict," Id. at 928-30. As the Seventh Circuit noted, "[T]he events McFarland would have had to show that Daggs "made a occurring prior to trial are almost exactly the opposite of choice between possible alternative courses of action, such as those that triggered the trial court's duty of inquiry in eliciting (or failing to elicit) evidence helpful to one client but Holloway." Id. at 930. The crucial event activating the harmful to the other." Id. at 481 (quoting United States v. Holloway rule, timely objection, was lacking in Mavrick, Mers, 701 F.2d 1321, 1328 (11th Cir. 1983)). “Effect on where the defendants resisted appointment of separate counsel representation” meant that the conflict caused the attorney’s No. 01-1360 McFarland v. Yukins 27 28 McFarland v. Yukins No. 01-1360

choice, not that the choice was prejudicial in any other way. There has been some difference in opinion among the Id. at 483. In Mickens v. Taylor, 535 U.S. 162, 172 n. 5 Circuits about when foregoing an available defense because (2002), the Supreme Court modified this test by putting both of a conflict of interest constitutes evidence of "adverse the cause and effect elements into the phrase "actual conflict": effect." Some Circuits hold that whenever counsel failed to pursue a "plausible" defense “that was inherently in conflict [T]he Sullivan standard is not properly read as requiring with or not undertaken due to the attorney’s other loyalties,” inquiry into actual conflict as something separate and there is sufficient evidence of adverse effect to show a Sixth apart from adverse effect. An "actual conflict," for Sixth Amendment violation. Winkler v. Keane, 7 F.3d 304, 309 (2d Amendment purposes, is a conflict of interest that Cir. 1993); Gambino, 864 F.2d at 1070; United States v. adversely affects counsel's performance. Fahey, 769 F.2d 829, 836 (1st Cir. 1985). Other Circuits also require that the foregone defense be "reasonable." Freund v. Mickens changed the terminology, but not the substance of Butterworth, 165 F.3d 839, 860 (11th Cir. 1999) (en banc) the test we had applied previously, since the standard still (showing of adverse effect requires proof of tactic foregone, requires a choice by counsel, caused by the conflict of of reasonableness of tactic on facts, and of a causal link interest. See Moss v. United States, 323 F.3d 445, 466-67 & between conflict and decision to forego tactic); Mickens, 240 n.23, 469 (6th Cir.), cert. denied, 124 S. Ct. 303 (2003). F.3d at 361 (same). Although the choice caused by the conflict does not have to This Circuit has been quite rigorous in demanding more be prejudicial in the sense of causing the defendant to lose the than omission of a hypothetical or "potential" defense to case, Thomas, 818 F.2d at 483, the reasonableness of establish adverse effect. See O'Guin v. Foltz, 715 F.2d 397, counsel’s choice can be relevant as a factor in proving the 400-01 (6th Cir. 1983). Under our cases, counsel’s choice to choice was caused by the conflict. A defendant or habeas forego a defense that would have been inconsistent with petitioner does not have to produce direct evidence, such as counsel's duty to another client is evidence of adverse effect the lawyer's testimony, that the lawyer chose to do one thing only if it is clear that the choice was not part of a legitimate rather than another in order to accommodate another client's strategy, judged under the deferential review of counsel’s interests. Causation can be proved circumstantially, through performance prescribed in Strickland v. Washington, 466 U.S. evidence that the lawyer did something detrimental or failed 668 (1984). In United States v. Mays, 77 F.3d 906, 908 (6th to do something advantageous to one client that protected Cir. 1996), we rejected an argument that a conflict caused a another client's interests. "[B]oth taking action and failing to lawyer's actions where "arguably unwise questions by defense take actions that are clearly suggested by the circumstances counsel of prosecution witnesses appear to have been part of can indicate an adverse effect." Mickens v. Taylor, 240 F.3d a losing strategy but they were not the result of choices made 348, 360 (4th Cir. 2001) (en banc) (quotation marks omitted), where there were clearly better alternatives." (Emphasis aff’d, 535 U.S. 162 (2002). “[T]he existence of an actual added.) In Riggs v. United States, 209 F.3d 828, 833 (6th Cir. conflict and adverse effects from it are more likely to be 2000), there was no proof of adverse effect where counsel evident in cases in which an attorney takes positive steps on failed to request an instruction to which the defendant would behalf of one client prejudicial to another than in cases in have had no right. Even where the lawyer omitted some which the attorney’s actions are based on inaction and are course of action that undoubtedly would have been passive . . . .” United States v. Gambino, 864 F.2d 1064, advantageous to the defendant, there is no proof of adverse 1070 (3d Cir. 1988). effect if there is some other adequate explanation for the No. 01-1360 McFarland v. Yukins 29 30 McFarland v. Yukins No. 01-1360

omission, see Moss v. United States, 323 F.3d 445, 470 (6th See Lockhart v. Terhune, 250 F.3d 1223, 1230-32 (9th Cir. Cir.) (lack of plea negotiations resulted from defendant’s 2001) (adverse effect found where petitioner’s trial counsel protestations of innocence), cert. denied, 124 S Ct. 303 also represented another person implicated in a killing; (2003), or if the lawyer was ignorant of the facts giving rise counsel failed to make use of “obvious defense” that other to the conflict, United States v. Hopkins, 43 F.3d 1116, 1118- client was the killer and Ninth Circuit could “discern no 19 (6th Cir. 1995). These cases are consistent with the tactical justification” for counsel’s decision); Griffin v. Supreme Court’s methodology in Burger v. Kemp, 483 U.S. McVicar, 84 F.3d 880, 886-91 (7th Cir. 1996) (actual conflict 776 (1987). There, counsel’s omission of a defense pointing where counsel presenting joint defense failed to present best the finger at another person was not evidence counsel was defense that petitioner’s co-defendant, rather than petitioner, motivated by loyalty to the other person, since the decision shot victim); United States v. Romero, 780 F.2d 981, 986-87 had a “sound strategic basis.” Id. at 784. (11th Cir. 1986) (actual conflict where defendant's "status as a low level employee [in drug operation] made a shifting On the other hand, where counsel's choices worked to the blame defense extremely feasible and . . . such a defense was defendant's detriment but to the benefit of another client, and completely foreclosed to him because it would have there was no other explanation for counsel's choices, we have implicated his codefendant and another client of his considered the choices themselves evidence of disloyalty. For attorney."); United States v. Levy, 25 F.3d 146, 157-58 (2d instance, in United States v. Boling, 869 F.2d 965, 972 (6th Cir. 1994) (actual conflict where attorney forewent plausible Cir. 1989), the defendant's counsel also represented a co- strategy of blaming another of attorney's clients); Fitzgerald defendant to some extent in a related matter, and had v. United States, 530 A.2d 1129, 1138-41 (D.C. Ct. App. represented the co-defendant in the past. Counsel pursued a 1987) (where guns and drugs found in various rooms of "common defense" strategy, which resulted in failing to call house, joint representation led to actual conflict preventing witnesses favorable to the defendant and unfavorable to the family members from arguing that other members possessed co-defendant and failing to cross-examine the co-defendant. contraband). We held the strategy was "unquestionably . . . very harmful" to the defendant and constituted a violation of her Sixth The record shows that McFarland's best defense would Amendment rights. Similarly, in United States v. Hall, 200 have been to contend that the drugs belonged to Reeves and F.3d 962, 966-67 (6th Cir. 2000), we held that counsel's not to McFarland. Under Michigan law, in order to convict actions were affected by a conflict when he failed to point out McFarland of possession of the drugs, the State had to prove that there was virtually no evidence linking one of his clients that she exercised control or had the right to exercise control to cocaine, and the only evidence supporting the conviction over them. People v. Konrad, 536 N.W. 2d 517, 521 (Mich. resulted from defendant's answer to a poorly phrased 1995); People v. Davenport, 197 N.W. 2d 521, 523-24 (Mich. question, to which counsel should have objected. Ct. App. 1972), disapproved on other grounds, People v. Nash, 313 N.W.2d 307 (Mich. Ct. App. 1981). There was Thus, where counsel fails to pursue a strong and obvious strong evidence indicating that Reeves, not McFarland, defense, when pursuit of that defense would have inculpated controlled the drugs found in the locked southeast bedroom. counsel's other client, and where there is no countervailing Agent Michael Hawes said that police had received Crack benefit to the defendant from foregoing that defense or other Hotline telephone complaints about "Donna," and during the explanation for counsel’s conduct, these facts amount to investigation that led to the search, the confidential informant evidence of disloyalty under any interpretation of Sullivan. had talked to "Donna," who confirmed that she had dilaudids, No. 01-1360 McFarland v. Yukins 31 32 McFarland v. Yukins No. 01-1360

but would not sell them to someone she did not know. The made. So how can you associate either–I mean Miss southeast bedroom contained items that could have been Paula McFarland with anything. linked either to Reeves or McFarland, such as women's clothing and mail, money order receipts, and other documents Daggs left the impression that it might have been McFarland with Reeves's or McFarland's name. Agent Hawes referred who talked to the confidential informant and that he had to to the southeast bedroom as Reeves's room, and he referred to discredit the confidential informant's report to defend the second bedroom as McFarland's. Agent Hawes said the McFarland, when it was Reeves who was implicated by the purse with the pen gun and the letter or card addressed to informant. He argued that neither of the women was involved McFarland was found in the second bedroom, not the with the drugs, even though there were women's clothes in the bedroom with the drugs and prescription forms. closet in the southeast bedroom; while it was plausible that one woman in the house was innocent of involvement with In McFarland's trial, Daggs not only failed to argue that the drugs, it was far less plausible that both were. Daggs thus Reeves was guilty, but he affirmatively argued that she was took on a heavier burden than would have been necessary in innocent. He argued in closing, "There's been no showing defending McFarland alone. See Griffin, 84 F.3d at 890 here by the prosecution that either Paula McFarland or Donna (habeas granted where counsel presenting joint defense Reeves . . . had possession or control of any narcotic . . . ." In pursued a theory so far-fetched that “no effective attorney presenting the joint defense, he neglected to point out that the representing Griffin alone would have resorted to it”). southeast bedroom appeared to be Reeves's room and even Moreover, Daggs failed to adduce any evidence that Reeves seemed to concede that it was McFarland’s room: even lived at the house, as the prosecutor noted in his summation in McFarland's trial. ("There's been no direct I'm assuming if we had two men living there at the same testimony that Donna Reeves lived there.") time we had two women they were probably maybe sharing bedrooms so how can we say that Paula Instead of the obvious defense of inculpating Reeves, McFarland would be guilty of possession and control of Daggs chose to point the finger at Eaton and Rayford. Eaton, narcotics and not the person maybe who was sharing the though present at the time of the search, had no key to the bedroom with her. That person could have just as easily locked room. Rayford was not present at the house during the bought [sic] those pills in there. The same with Donna search and was linked to the house only by the presence of Reeves. documents, including a marriage license bearing his name and Reeves's and some letters addressed to him at the house, and The burden of exculpating Reeves during McFarland's trial the possible inference that he was the male described in the caused Daggs to make implausible arguments that would not search warrant. have been necessary had he been defending McFarland alone. For instance, Daggs addressed the report by the confidential Daggs’s duty of loyalty to Reeves would have been informant about trying to buy drugs at the house: breached had he actively pursued a theory that she was guilty of the charges while he was currently representing Reeves in They says some white lady came to the door, well so a trial on those same charges; had Daggs developed and what? You knock on my door I'm going to probably presented evidence and arguments establishing Reeves’s guilt, come to the door, too. . . . But there wasn't any buy for example, by calling McFarland or Eaton to testify, or by bringing out on cross-examination that Hawes understood the No. 01-1360 McFarland v. Yukins 33 34 McFarland v. Yukins No. 01-1360

southeast bedroom to be Reeves's, Daggs's work product C. could have been used against his own client. See Mich. Rules of Prof'l Conduct R. 1.7 (1985) ("A lawyer shall not represent McFarland also argues that Daggs’s errors and omissions a client if the representation of that client will be directly violated her Sixth Amendment rights, even without regard to adverse to another client . . . ."). whether Daggs was subject to a conflict of interest. Under the rule of Strickland v. Washington, 466 U.S. 668 (1984), a The district court found that Daggs's decision to argue that defendant’s right to effective assistance of counsel is violated neither Reeves nor McFarland possessed the drugs, instead of where counsel’s representation “fell below an objective contending that Reeves was the owner, resulted from his standard of reasonableness,” id. at 688, and where there is “a conflict of interest. The district court found that "Daggs' reasonable probability that, but for counsel’s unprofessional decision to present a common defense harmful to errors, the result of the proceeding would have been [McFarland] was the result of his desire to protect Reeves' different,” id. at 694. interests and thus indicative of his struggle to serve two masters." (quotation marks omitted). The district court The district court did not reach the claim of ineffective specifically found that because McFarland and Reeves were assistance of counsel under the Strickland standard. tried separately, there was no countervailing advantage to However, without repeating our discussion in Part II B, it is McFarland from the common defense strategy pursued by clear that McFarland had a strong argument that Reeves Daggs. The district court held that this evidence proved that occupied the locked southeast bedroom and possessed the Daggs made a choice in his representation of McFarland that drugs found there. was caused by his conflict of interest. The district court's finding of subjective motivation is not clearly erroneous. See Under Michigan law, the State only needed to prove that Burger v. Kemp, 483 U.S. at 785. McFarland had joint, not exclusive, possession of the drugs. People v. Konrad, 536 N.W.2d 517, 521 (Mich. 1995). This case therefore presents an actual choice by McFarland’s name appeared on numerous documents found McFarland's counsel to forego an obvious and strong defense in the dresser of the southeast bedroom, so there was some to avoid inculpating another client. The district court's legal evidence linking her to the drugs. Still, in order to prevail conclusion that Daggs labored under an actual conflict of under Strickland, it was not necessary to prove McFarland interest establishing a Sixth Amendment violation under would necessarily have prevailed at trial, only that there was Sullivan is correct. a “reasonable probability” that she would have done so.

At the time of McFarland’s appeal, the Michigan Court of After McFarland’s trial, the trial judge mentioned her own Appeals would, of course, have followed Sullivan. See, e.g., misgivings about the sufficiency of the evidence connecting People v. Rhinehart, 385 N.W.2d 640, 641 (Mich. Ct. App. McFarland to the drugs. How much more doubt would she 1986). Had McFarland’s counsel raised this argument on have felt if she had been made aware of the many documents appeal, McFarland should have prevailed. with Reeves’s name found in the dresser of the southeast bedroom? Or of the fact that McFarland’s purse was found in the second bedroom, not the bedroom with the drugs? Or if Hawes had testified, as he did in Reeves’s case, that the southeast bedroom was Reeves’s and the second bedroom No. 01-1360 McFarland v. Yukins 35 36 McFarland v. Yukins No. 01-1360

was McFarland’s? Or if counsel had brought out the We have identified a list of relevant factors which help us exchange between the confidential informant and “Donna”? distinguish a case of ineffective assistance of appellate Reeves’s connection with the locked room was strong enough counsel from the case in which counsel's decision to omit an to raise a reasonable probability that McFarland’s trial would argument on appeal falls within the realm of acceptable have had a different outcome if her lawyer had actively professional performance: pursued the defense that the southeast bedroom and the drugs in it belonged to Reeves and to make it unreasonable for (1) Were the omitted issues "significant and obvious"? Daggs to have failed to do so. (2) Was there arguably contrary authority on the omitted issues? We conclude that if state appellate counsel had argued that (3) Were the omitted issues clearly stronger than those Daggs’s failure to contend that the drugs belonged to Reeves presented? was ineffective assistance of counsel, McFarland should have (4) Were the omitted issues objected to at trial? won her appeal. (5) Were the trial court's rulings subject to deference on appeal? III. (6) Did appellate counsel testify in a collateral proceeding as to his appeal strategy and, if so, were the Having decided that McFarland would likely have justifications reasonable? prevailed on her appeal if counsel had argued that her trial (7) What was appellate counsel's level of experience and counsel was ineffective, we must still decide whether expertise? appellate counsel's failure to raise the argument was (8) Did the petitioner and appellate counsel meet and go sufficiently unreasonable to violate McFarland's right to over possible issues? counsel. (9) Is there evidence that counsel reviewed all the facts? (10) Were the omitted issues dealt with in other Failure of appellate counsel to raise an issue can amount to assignments of error? constitutionally ineffective assistance. E.g., Joshua v. Dewitt, (11) Was the decision to omit an issue an unreasonable 341 F.3d 430, 441 (6th Cir. 2003); Lucas v. O’Dea, 179 F.3d one which only an incompetent attorney would adopt? 412, 419 (6th Cir. 1999); Mapes v. Coyle, 171 F.3d 408, 427- 29 (6th Cir. 1999). However, counsel has no obligation to Mapes, 171 F.3d at 427-28. raise every possible claim, see Jones v. Barnes, 463 U.S. 745, 751-54 (1983), and the decision of which among the possible We have already decided in part II, supra, that McFarland claims to pursue is ordinarily entrusted to counsel's received ineffective assistance of trial counsel, which should professional judgment, see Smith v. Murray, 477 U.S. 527, have led to reversal of her conviction. It therefore follows 536 (1986). "Counsel's performance is strongly presumed to that this argument was stronger than the seven arguments be effective." Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir. counsel raised on direct appeal. One of those arguments 2000) (citing Strickland, 466 U.S. at 690). Even if counsel resulted in McFarland's sentence being reduced from twenty made a mistake, the mistake might not be serious enough to to thirty years to ten to thirty years; nevertheless, it goes have affected the defendant's constitutional right to counsel. without saying that a defendant would prefer a reversal to Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001), cert. resentencing. denied, 535 U.S. 940 (2002). No. 01-1360 McFarland v. Yukins 37 38 McFarland v. Yukins No. 01-1360

Further, the conflict issue was obvious. Appellate counsel have been difficult, if not impossible, for appellate counsel to testified he was aware that McFarland and Reeves were argue that trial counsel's conflict prevented trial counsel from represented by the same attorney at trial. The colloquy pointing the finger at Reeves when appellate counsel was also containing McFarland's request for separate counsel appears representing Reeves on appeal. This spectre of yet another in the trial transcript, as does the evidence pointing to Donna conflict of interest contributes to McFarland's showing of Reeves's occupancy of the southeast bedroom where the ineffective assistance of appellate counsel. See Greer v. contraband was found. The brief on direct appeal included a Mitchell, 264 F.3d 663, 680 (6th Cir. 2001), cert. denied, 535 challenge to the sufficiency of the evidence and included U.S. 940 (2002). extensive citation to the trial transcript, thus showing counsel possessed a thorough knowledge of the transcript. One of the We conclude that appellate counsel's ineffectiveness was points counsel did raise on appeal concerned the sufficiency the cause for McFarland's failure to raise ineffectiveness of of the affidavit supporting the search warrant; this affidavit trial counsel on appeal. Because we have already held that stated that the confidential informant had tried to buy drugs the ineffectiveness claim was meritorious and should have from "Donna" and that Donna replied that she had dilaudids resulted in a reversal of McFarland's conviction, there is no but would not sell them to someone she did not know. Thus, question but that appellate counsel's errors were prejudicial. it is beyond dispute that appellate counsel had information Consequently, McFarland has shown cause and prejudice before him that pointed to the defense that the drugs belonged excusing her failure to raise ineffective assistance of trial to Donna Reeves, that appellate counsel knew Donna Reeves counsel on her direct appeal. Nothing, therefore, bars her and McFarland were represented by the same attorney at trial, from litigating this claim. and that they had unsuccessfully sought separate counsel. IV. The Sixth Amendment violation would have resulted in automatic reversal under the rule in Holloway. It is therefore The Warden argues that the district court erred in allowing difficult to excuse counsel’s failure to argue a point that McFarland the evidentiary hearing at which appellate counsel would have led so expeditiously to reversal of the conviction. testified. The district court found that McFarland "diligently requested an evidentiary hearing on the issue of ineffective Sometimes, omission of certain arguments or evidence is assistance of counsel at every stage of her post-conviction shown by the attorney's testimony to have been a reasonable proceedings in the Michigan courts." Since McFarland was strategic decision or to be the result of factors beyond the denied such a hearing, she was therefore entitled to present attorney's control. See Scott, 209 F.3d at 880-81 (decision not evidence in the habeas proceeding on the subject of whether to present mitigating evidence part of strategy to keep her appellate counsel was ineffective. The Antiterrorism and defendant's criminal history from jury); Mapes, 171 F.3d at Effective Death Penalty Act outlines a heightened standard 430 (Siler, J., concurring and dissenting) ("[Counsel] may for a petitioner seeking an evidentiary hearing if the petitioner have had strategic reasons for omitting the issue, or his client has "failed to develop the factual basis of a claim in State may have requested that it be omitted."). That is not the case court proceedings." 28 U.S.C. § 2254(e)(2) (2000). We have here. Appellate counsel testified that he could not even recall held that a petitioner who was diligent in seeking a state whether he had raised a claim of conflict of interest on evidentiary hearing, but whose requests were denied in the McFarland's behalf. Moreover, appellate counsel himself state courts, did not "[fail] to develop the factual basis of the represented both McFarland and Reeves on appeal. It would claim" and therefore the heightened standard of § 2254(e)(2) No. 01-1360 McFarland v. Yukins 39 40 McFarland v. Yukins No. 01-1360

was inapplicable. Greer v. Mitchell, 264 F.3d 663, 681 (6th or involved an unreasonable application of, clearly Cir. 2001) (quoting Williams v. Taylor, 529 U.S. 362, 432 established Federal law, as determined by the Supreme Court (2000)) (petitioner was diligent in seeking hearing on of the United States,” or (2) “resulted in a decision that was ineffective assistance of appellate counsel claim in state post- based on an unreasonable determination of the facts in light conviction proceedings; therefore, petitioner was entitled to of the evidence presented in the State court proceeding.” 28 hearing on claim in federal habeas), cert. denied, 535 U.S. U.S.C. § 2254(d). 940 (2002); Sawyer v. Hofbauer, 299 F.3d 605, 610 (6th Cir. 2002). But cf. Martin v. Mitchell, 280 F.3d 594, 615 (6th Cir. The only state court decision on the merits in this case is 2002) (holding that petitioner who failed to raise ineffective the trial court’s response to McFarland’s objection to having assistance of trial counsel on direct appeal had therefore to proceed to trial with the same counsel as Reeves. At that "failed to develop the factual basis" of that claim, even though time, McFarland’s actual conflict claim, which depends on petitioner argued that failure was due to ineffective assistance the existence of an adverse effect on Daggs’s representation, of appellate counsel), cert. denied, 537 U.S. 1004 (2002) and and her Strickland v. Washington, 466 U.S. 668 (1984), 123 S. Ct. 2601 (2003). The Warden does not dispute the claim, which depends on Daggs’s omission of a defense at district court's finding that McFarland sought an evidentiary trial, had not matured and so could not possibly have been hearing in her state postconviction motion and that no hearing included in the trial court’s ruling. It therefore appears that was allowed by the state courts. The record before us does the Cuyler v. Sullivan, 446 U.S. 335 (1980), and Strickland not contain the motion itself, but it does contain McFarland's claims must be reviewed de novo, rather than under the postconviction brief to the Michigan Supreme Court, which heightened standard of review appropriate for claims that specifically requests an evidentiary hearing. The have been adjudicated on the merits in state courts. See postconviction motion was McFarland's first opportunity to Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003) (“Where, raise the ineffectiveness of her appellate counsel. as here, the state court did not assess the merits of a claim Accordingly, the heightened standard of § 2254(e)(2) does not properly raised in a habeas petition, the deference due under apply to McFarland's case and the district court did not violate the AEDPA does not apply.”). As we have already § 2254(e)(2) in affording her a hearing on the subject of her determined that McFarland established Sixth Amendment appellate counsel's representation. violations on both the Sullivan and Strickland claims, no further analysis is necessary to establish her right to relief on V. those claims. Because this case was filed after the effective date of the The Holloway v. Arkansas, 435 U.S. 475 (1978), claim (see Antiterrorism and Effective Death Penalty Act, Pub. L. No. supra at Part II.A.), however, is subject to the heightened 104-132, Tit. I, § 104, 110 Stat. 1218 (1996), amending 28 AEDPA standard. Under the first clause of § 2254(d), a state U.S.C. § 2254, in order to decide whether habeas was court decision is “contrary to [the Supreme Court’s] clearly properly granted, it is not enough to decide whether there was established precedent if the state court . . . confronts a set of a violation of McFarland’s constitutional rights. We must facts that are materially indistinguishable from a decision of further determine whether the constitutional claim was [the Supreme] Court and nevertheless arrives at a result adjudicated on the merits in state court proceedings. If so, a different from [Supreme Court] precedent.” Lockyer v. writ of habeas corpus may only be granted if the state Andrade, 538 U.S. 63, 123 S. Ct. 1166, 1173 (2003) (quoting adjudication (1) “resulted in a decision that was contrary to, Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). This No. 01-1360 McFarland v. Yukins 41

scenario fits McFarland’s case precisely. McFarland, like the petitioners in Holloway, objected before trial to having to proceed to trial with one counsel for two defendants. Although the trial court severed McFarland’s trial from her co-defendant’s, which we have determined did not obviate the conflict of interest, McFarland, like the Holloway petitioners, was forced, over her objection, to go to trial with counsel who was actively representing a co-defendant. Forcing McFarland to go to trial with conflicted counsel contradicts the clearly established precedent of Holloway v. Arkansas. McFarland has shown that she is entitled to relief under the AEDPA. *** For all of the reasons set forth above, we affirm the district court’s grant of the conditional writ of habeas corpus.