AMENDED OPINION
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 10-6652
TERRENCE LOWELL HYMAN,
Petitioner – Appellee,
v.
ALVIN W. KELLER, JR.,
Respondent – Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:08-hc-02066-BO)
Argued: May 13, 2011 Decided: July 21, 2011
Amended Opinion Filed: August 10, 2011
Before WILKINSON, KING, and AGEE, Circuit Judges.
Appeal stayed by unpublished per curiam opinion.
ARGUED: Mary Carla Hollis, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellant. Nicholas Collins Woomer-Deters, NORTH CAROLINA PRISONER LEGAL SERVICES, INC., Raleigh, North Carolina, for Appellee. ON BRIEF: Roy Cooper, Attorney General of North Carolina, Raleigh, North Carolina, for Appellant. Paul M. Green, Durham, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.
2 PER CURIAM:
In September 2003, petitioner Terrence Hyman was
convicted in the Superior Court of Bertie County, North
Carolina, for the murder of Ernest Lee Bennett, Jr; he was then
sentenced to life in prison without parole. Following
unsuccessful direct appeals in the North Carolina courts, Hyman
sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in
the Eastern District of North Carolina. The district court
awarded habeas relief to Hyman, ruling that he had been denied
his Sixth Amendment right to counsel, due to his trial lawyer’s
conflict as a potential exculpatory witness (the “exculpatory
witness component” of Hyman’s Sixth Amendment claim). See Hyman
v. Beck, No. 5:08-hc-02066 (E.D.N.C. Mar. 31, 2010) (the
“District Court Order”). 1
This appeal is pursued by respondent Alvin W. Keller,
Jr., who serves as Secretary of North Carolina’s Department of
Correction (the “State”). The State asserts that the district
court erred by ruling that the exculpatory witness component had
been exhausted in the state courts and in awarding habeas relief
on the merits thereof. As explained below, because the North
Carolina courts have never explicitly resolved the exculpatory
1 The District Court Order is found at J.A. 456-71. (Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by the parties in this appeal.)
3 witness component, on either procedural or substantive grounds,
the interests of federalism and comity compel us to stay this
appeal pending further state court proceedings.
I.
A.
At his murder trial, Hyman was represented by lawyers
Teresa Smallwood and W. Hackney High; this appeal implicates
Smallwood’s failure to withdraw from her representation of Hyman
and testify on his behalf. Smallwood had interviewed a key
witness against Hyman, Derrick Speller, in her investigation of
Hyman’s defense, and she had also briefly represented Speller in
a probation violation hearing. Smallwood’s interactions with
Speller posed two separate conflicts underlying Hyman’s Sixth
Amendment claim — a “dual representation conflict,” plus the
“exculpatory witness conflict” before us on appeal. As the
Court of Appeals of North Carolina concluded on direct review,
the dual representation conflict emanated from Smallwood’s
representation of both Hyman and Speller. By contrast, the
exculpatory witness conflict arose because Speller admitted to
Smallwood, long before Hyman’s trial, that he had seen a man
named Demetrius Jordan shoot and kill Bennett.
In his first state court appeal (“Hyman I”), Hyman
asserted his Sixth Amendment claim and discussed both conflict
4 of interest issues. Nevertheless, the Court of Appeals of North
Carolina addressed only the dual representation conflict,
remanding the matter for a hearing. On remand, the trial court
concluded that Smallwood’s representation of both Hyman and
Speller had not adversely affected Hyman’s defense. Hyman
challenged that ruling before the state court of appeals (“Hyman
II”), but the trial court’s judgment was affirmed. Hyman
thereafter petitioned for certiorari in the Supreme Court of
North Carolina, seeking to have that court consider the
exculpatory witness component of his Sixth Amendment claim.
Certiorari was denied, however, on December 22, 2008.
Accordingly, the North Carolina courts have never directly
confronted the exculpatory witness conflict.
1.
The prosecution’s theory at Hyman’s September 2003
trial was that, on May 5, 2001, Bennett was shot and killed by
Hyman in a bar fight at the L & Q Social Club, a nightclub in
Bertie County. Speller testified at trial that he saw Hyman
enter the club with a handgun and shoot Bennett, who was seeking
to flee. Speller said that he then saw Hyman shoot Bennett
again outside the club. Demetrius Jordan was also outside the
club, according to Speller, but he only fired gunshots into the
air.
5 When the prosecutor asked Speller whether he had
discussed the case with anyone else, Speller acknowledged that
he had spoken to “Teresa” — a reference to Teresa Smallwood, the
lawyer then representing Hyman. See J.A. 62. On November 20,
2001, Smallwood interviewed Speller, who implicated Jordan and
fully exculpated Hyman. A year later, in 2002, Smallwood
briefly represented Speller in a probation violation hearing.
At Hyman’s trial in 2003, the details of the November
2001 interview were prominently featured in Smallwood’s cross-
examination of Speller, as Smallwood sought to establish that
Speller had previously identified Jordan as the killer, but had
later altered his story because he was afraid of Jordan. For
example, Smallwood asked Speller whether he had previously told
her that Jordan (rather than Hyman) had actually shot Bennett.
After Speller disclaimed any such conversation, Smallwood
inquired whether Speller had admitted to her that Jordan would
“off him [Speller] in a minute.” J.A. 68. Speller also denied
that statement.
Speller instead asserted at trial that, after his 2002
probation violation hearing, he talked with Smallwood about
Hyman’s case in the parking lot of her office. Speller’s
account was that he told Smallwood that his evidence “would harm
[Hyman] more than [it] could help him.” J.A. 72. Faced with
Speller’s intransigence, Smallwood requested the trial court to
6 allow her to confront Speller with the notes she made of the
November 2001 interview. This was Smallwood’s only request
regarding her notes, and it was denied.
Other than Speller, the only witness implicating Hyman
in Bennett’s murder was Robert Wilson, another club patron.
Smallwood and her co-counsel called two exculpatory eyewitnesses
in their defense of Hyman. First, Demetrius Pugh testified that
he saw Demetrius Jordan shoot Bennett three times, twice while
Bennett was fleeing from the club and a third time after Bennett
had exited. As Bennett lay on the ground outside the club,
Jordan obtained another handgun and shot Bennett the third time.
Pugh said that, although he saw Hyman at the club, he never saw
Hyman with a firearm. Pugh further testified that when Bennett
was shot, Hyman had already left the club.
Thereafter, Hyman’s lawyers called Lloyd Pugh, the
nightclub’s owner (who was unrelated to Demetrius Pugh). Lloyd
Pugh testified to breaking up a fight between Telly Swain — once
a co-defendant of Hyman — and Swain’s brother. While doing so,
Lloyd Pugh saw Hyman leave the club. Although Lloyd Pugh later
heard gunshots outside the club, Hyman was by then back inside.
On September 12, 2003, Hyman was found guilty by the
jury of the offense of first-degree murder. On September 16,
2003, the jury recommended a sentence of life without parole,
7 which the court dutifully imposed. Hyman’s state court appeal
proceedings then ensued.
2.
In the Hyman I appeal, Hyman sought relief from his
conviction and sentence in the Court of Appeals of North
Carolina. He initially presented ten assignments of error, two
of which (Assignments 9 and 10) are relevant to his Sixth
Amendment claim. 2 Assignment of Error 9 specified the following:
The trial court erred in failing to conduct a voir dire when it became aware of a conflict of interest on the part of one of the Defendant’s attorneys, who had previously represented Derrick Speller, one of the State’s witnesses.
J.A. 248. Assignment 10 stated:
Defendant was denied the assistance of counsel because his attorney failed to withdraw from representation when it became apparent that she had a conflict of interest.
Id.
2 Although the North Carolina Rules of Appellate Procedure have been amended so that a party is no longer required to set out assignments of error, see N.C. R. App. P. 10 (2010), the amended Rules did not become effective until 2009. When Hyman’s notice of appeal was filed in 2003, the applicable Rules, including Rule 10, required “[p]roposed issues that the appellant intends to present on appeal [to] be stated without argument at the conclusion of the record on appeal in a numbered list.” Assignments of Error 9 and 10 were on the Rule 10 list in Hyman I.
8 In his appellate brief in Hyman I, Hyman combined
Assignments of Error 9 and 10 for briefing purposes. Addressing
the dual representation conflict, Hyman explained that “[a]n
actual conflict of interest exists where defense counsel
represents both the defendant and a State’s witness, even if
that representation is in an unrelated matter.” J.A. 268.
Hyman maintained that the trial court had erred when, after
being made aware of the dual representation conflict, it failed
to conduct an appropriate hearing to render Hyman fully advised
of the conflict and give him an opportunity to express his
views.
Hyman’s appellate brief in Hyman I further asserted,
in an argument geared to the exculpatory witness conflict, that
“[d]efense counsel Smallwood had a conflict of interest in that
she was in possession of information which could be used to
impeach Derrick Speller, one of the State’s most crucial
witnesses.” J.A. 269. The brief explained this point further:
Although [Smallwood] chose to remain as counsel and used the information she acquired in her representation of Speller to impeach his testimony, rather than withdrawing as counsel and testifying as a witness, it is not at all clear that this was the correct decision. It is certainly arguable that the information she had to impart would have carried more weight had she been on the stand testifying under oath.
9 Hyman’s primary authority for his Sixth Amendment
claim was State v. Green, 500 S.E.2d 452 (N.C. Ct. App. 1998),
in which the Court of Appeals of North Carolina relied heavily
on its earlier decision in State v. James, 433 S.E.2d 755 (N.C.
Ct. App. 1993). In James, the defendant’s attorney was
simultaneously representing a prosecution witness on unrelated
criminal charges. The James court recognized a Sixth Amendment
conflict of interest issue and invoked the Supreme Court’s
precedent in Cuyler v. Sullivan, 446 U.S. 335 (1980). When a
Sixth Amendment ineffective assistance claim is premised on an
actual conflict of interest, Cuyler requires a showing that (1)
petitioner’s lawyer operated under a “conflict of interest” and
(2) such conflict “adversely affected his lawyer’s performance.”
446 U.S. at 348. Applying Cuyler in James, the Court of Appeals
of North Carolina recognized that the “representation of the
defendant as well as a prosecution witness (albeit in another
matter) creates several avenues of possible conflict for an
attorney.” 433 S.E.2d at 758. And, the court concluded that
the James lawyer “did actively represent conflicting interests
and this adversely affected defendant herein.” Id. (explaining,
inter alia, that “the overlap of representation prior to and at
the time of trial of both parties by [the]
attorney . . . resulted in an unavoidable conflict as to
confidential communications, and affected counsel's ability to
10 effectively impeach the credibility of [the prosecution]
witness . . . , thus compromising defendant’s representation”).
Finally, the court instructed that,
in a situation of this sort, the practice should be that the trial judge inquire into an attorney’s multiple representation once made aware of this fact. If the possibility of conflict is raised before the conclusion of trial, the trial court must take control of the situation. A hearing should be conducted to determine whether there exists such a conflict of interest that the defendant will be prevented from receiving advice and assistance sufficient to afford him the quality of representation guaranteed by the sixth amendment.
Id. (internal quotation marks omitted). The court deemed “the
failure of the trial judge to conduct an inquiry” in James to be
reversible error “in and of itself.” Id. at 759.
Thereafter, in Green, the court of appeals assessed a
situation where a defense lawyer “had to decide whether to
pursue a line of impeachment questioning with a particular
witness” and his choice “could have required the attorney
himself to testify and thus could have created the possibility
that the attorney would have to withdraw from the case.” 500
S.E.2d at 460. The trial judge in Green readily recognized the
lawyer’s conflict and questioned the defendant to confirm that
he understood the conflict and why his lawyer was abandoning a
line of impeachment questioning. Proceeding carefully, the
trial court appointed separate counsel to inform and advise the
defendant on the conflict issue. Although the defendant
11 ultimately waived his right to conflict-free counsel, he later
pursued a Sixth Amendment ineffective assistance claim on
appeal. The court of appeals recognized that a defense lawyer
who decides not to pursue a trial strategy that may require him
to testify thereby jeopardizes his client’s Sixth Amendment
right to conflict-free counsel. Id. Nevertheless, the court
concluded that the Green defendant had plainly waived the
conflict during trial, and it thus declined to award any relief.
b.
In its Hyman I decision of August 2, 2005, the Court
of Appeals of North Carolina recognized that Smallwood had a
conflict of interest that arose from her dual representation of
both Hyman and Speller, and it remanded for the trial court to
conduct an evidentiary hearing on whether Hyman’s defense had
been adversely affected thereby. See State v. Hyman, No. 04-
1058 (N.C. Ct. App. Aug. 2, 2005) (the “Hyman I Opinion”). 3 The
court of appeals recited that, under Cuyler, a defendant who
fails to timely object to a conflict of interest on the part of
his lawyer must show that the conflict adversely affected the
lawyer’s trial performance. See 446 U.S. at 348. The court of
3 The Hyman I Opinion is found at J.A. 107-13.
12 appeals emphasized that, even absent an objection, when a trial
court becomes aware of a lawyer’s potential conflict of
interest, it is obliged to conduct an appropriate hearing. See
James, 433 S.E.2d at 758. Based on that precedent, the court of
appeals observed that, “[l]ike the attorney in James,
[Smallwood] had also previously represented a witness for the
State on an unrelated charge.” Hyman I Opinion 5. Thus,
according to the court of appeals, the trial court erred by
failing to comply with the hearing requirement of James.
Nonetheless, the court of appeals was not convinced that Hyman
was entitled to relief, explaining:
Despite finding error in this case, we cannot find from the face of the record that defendant’s attorney’s prior representation of Speller affected her representation of defendant. As a result, we remand for an evidentiary hearing to determine if the actual conflict adversely affected the attorney’s performance.
Id. at 5-6. In sum, the court of appeals concluded that
Smallwood had a conflict of interest when she defended Hyman at
trial, but only because she had represented Speller in the
probation violation hearing. The court did not acknowledge the
exculpatory witness conflict.
3.
On November 2, 2005, the trial court conducted the
hearing directed by the court of appeals in Hyman I. At the
13 outset of the hearing, the prosecution set forth its view to the
trial court that the court of appeals had
basically order[ed] that the trial judge make a finding or do an inquiry as to whether or not Ms. Smallwood, who is present and represented the defendant at trial, whether there was conflict of her prior representation of Derrick Speller, who was a State’s witness in this case, whether there was a conflict and whether it adversely affected her representation of Mr. Hyman.
J.A. 117-18. The court accepted the prosecution’s
characterization of the scope of the Hyman I remand hearing, and
thus addressed and disposed of the dual representation conflict
issue only. 4 The sole witness at the hearing was Smallwood
herself. She explained that her representation of Speller in
the probation violation hearing occurred on a single day in
2002, more than a year before the Hyman trial. According to
4 Hyman appeared at the remand hearing with attorney Jackson Warmack, who had represented former co-defendant Telly Swain throughout the original murder proceedings. The court enlisted Warmack’s assistance after it “discussed this matter with the prosecution” and “decided in the best interest of all that Mr. Hyman have a new attorney appointed to represent him.” J.A. 115-16. Notwithstanding his prior involvement adverse to Hyman, Warmack agreed to the appointment, explaining that he “contacted the State bar and determined there would be no conflict there.” Id. at 116. Warmack then represented to the court that he met with Hyman and “explained the situation and told him that if he had any problems with it this would be the time.” Id. Following these representations, the court asked Hyman whether he had any objection to being represented by Warmack, and Hyman responded in the negative. See id.
14 Smallwood, she represented Speller for only five to ten minutes,
during which there was no discussion of Hyman or the Bennett
shooting. Smallwood also asserted (incorrectly) that her
representation of Speller did not overlap with her
representation of Hyman and that she was not even sure whether
Hyman had been charged with Bennett’s murder at the point she
represented Speller. Smallwood maintained that she had
discussions with Speller about Hyman’s defense after her
representation of Speller concluded. On cross-examination,
Smallwood was asked whether she had any records regarding her
representation of Speller. She replied that she did not, but
that “[m]ore likely than not I was operating from my hip, which
is what I have done for twenty years.” J.A. 128.
After Smallwood’s testimony, the trial court located
its records regarding Smallwood’s representation of Speller and
Hyman. Those records revealed that Smallwood had appeared in
Speller’s probation violation hearing on September 26, 2002, and
that Smallwood had actually been appointed to represent Hyman on
the murder charge more than a year earlier, on May 14, 2001. At
the conclusion of the remand hearing, the court ruled from the
bench that
[a]t this time I’m going to find and order that there was nothing about Ms. Smallwood’s previous representation of Mr. Derrick Speller, a witness in this case, that adversely affected her performance or
15 her representation of Mr. Terrence Hyman in the trial of his case.
J.A. 133.
On November 28, 2005, the trial court issued an order
consistent with its oral ruling. See State v. Hyman, 01-CRS-
50423 (N.C. Sup. Ct. Nov. 28, 2005) (the “Remand Ruling”). 5 The
Remand Ruling addressed only the dual representation conflict
and explained that
[t]his matter comes . . . pursuant to an opinion of the North Carolina Court of Appeals . . . remanding the case to this Court to conduct an evidentiary hearing to determine if the actual conflict between the defendant’s trial attorney Teresa Smallwood and a State’s witness Derrick Speller adversely affected Ms. Smallwood’s performance in the representation of the defendant Terrence Hyman.
Id. at 1. The Remand Ruling made several findings of fact,
including the finding that, during her five- to ten-minute
representation of Speller on September 26, 2002, Smallwood did
not obtain any information about Speller that could have been
used to impeach him. Id. at 2. The Remand Ruling denied relief
on the dual representation conflict, specifying that
“Smallwood’s representation of Terrence Hyman was not adversely
affected by her previous representation of Derrick Speller.”
5 The Remand Ruling is found at J.A. 135-36.
16 4.
After the Remand Ruling, Hyman again appealed to the
Court of Appeals of North Carolina. In Hyman II, Hyman raised
only three assignments of error, the third being that
[t]he trial court’s conclusion of law that defense counsel’s representation of Defendant was not adversely affected by her prior representation of Derrick Speller is not supported by the trial court’s findings of fact or by competent evidence in the record, and is erroneous as a matter of law.
J.A. 341. Hyman’s brief responded to the trial court’s findings
of fact and asserted that the court had erred in ruling on the
dual representation conflict. Hyman’s brief argued that,
[a]lthough Speller was cross-examined by Smallwood to some extent about these matters, it is apparent given the damaging nature of what she was told, that Ms. Smallwood’s cross-examination would have been more vigorous, and certainly more illuminating.
Id. at 356-57. Hyman thus contended in Hyman II that the trial
court erred in concluding that he was not adversely affected by
Smallwood’s prior representation of Speller.
On April 3, 2007, the court of appeals affirmed the
Remand Ruling as to the dual representation conflict, and it
accepted the trial court’s conclusion that Smallwood’s prior
representation of Speller had not adversely affected Hyman. See
State v. Hyman, No. 06-939 (N.C. Ct. App. Apr. 3, 2007) (the
17 “Hyman II Opinion”). 6 The court of appeals characterized Hyman’s
contention thusly: “Defendant argues the trial court erred when
it concluded Smallwood’s representation of him had not been
adversely affected by her prior representation of Speller, a
State’s witness.” Id. at 3. The court of appeals again
emphasized that “‘[t]he right to effective assistance of counsel
includes the right to representation that is free from conflicts
of interest.’” Id. (quoting State v. Bruton, 474 S.E.2d 336,
343 (N.C. 1996)). Nonetheless, the court of appeals explained
that, under State v. James, the trial court had correctly
concluded that Smallwood’s previous representation of Speller
had not adversely affected Hyman: “As distinct from James,
there was no overlap of representation prior to and at the time
of trial between Smallwood’s prior representation of Speller at
his probation violation hearing and her representation of
defendant at his first degree murder trial.” Id. at 5 (internal
quotation marks omitted). 7 Furthermore, the court of appeals
observed:
6 The Hyman II Opinion is found at J.A. 137-41. 7 As established at the remand hearing, Smallwood represented Speller at his probation violation hearing on September 26, 2002. She had by then already been representing Hyman since May 2001. Hyman’s trial did not commence until September 2003.
18 No evidence was shown that Smallwood’s prior representation of Speller affected her ability to effectively impeach the credibility of witness Speller. The record on appeal contains no evidence that Smallwood obtained any information about either Speller or defendant during her representation of defendant that Smallwood could have used to impeach Speller during trial.
Id. (internal quotation marks omitted). Again, as in Hyman I,
the court did not acknowledge the exculpatory witness conflict.
5.
Thereafter, on May 31, 2008, Hyman petitioned for
certiorari in the Supreme Court of North Carolina. In his
petition, Hyman presented only one contention, specifying that
his
Sixth Amendment right to the effective assistance of conflict-free counsel was violated by defense attorney Smallwood’s position as a witness to a highly material prior inconsistent statement by a key state’s witness (her former client), directly contradicting his trial testimony and exonerating petitioner of this crime.
J.A. 201. Thus, Hyman refined his Sixth Amendment claim to
encompass only the exculpatory witness component, and he
underscored that the court of appeals “didn’t mention
Smallwood’s conflicted position as a witness to Speller’s highly
material inconsistent prior statement.” Id. at 200. According
to Hyman, his Sixth Amendment right to counsel had been abridged
in that “it is part of clearly established federal law that a
Sixth Amendment violation may arise not only from conflicts
19 between the interests of counsel’s clients, but also from
conflicts between the client’s and counsel’s own interests.”
Id. at 202. Hyman maintained that Smallwood’s conflict
adversely affected him in that “it would be impossible for any
attorney to make an objective assessment of her own importance
as a witness, independent of personal and professional
considerations arising from her likely inability to continue
serving as counsel.” Id. at 208. On December 11, 2008, the
Supreme Court of North Carolina summarily denied Hyman’s
petition for certiorari. See State v. Hyman, No. 245P08 (N.C.
Dec. 11, 2008).
On May 8, 2008, Hyman turned to the federal courts,
petitioning for habeas corpus relief in the Eastern District of
North Carolina, pursuant to 28 U.S.C. § 2254. 8 In his § 2254
petition, Hyman contended that
8 Hyman filed his § 2254 petition in the district court prior to seeking certiorari in the Supreme Court of North Carolina. As a result, on October 15, 2008, the district court stayed Hyman’s § 2254 petition pending a ruling on the petition for certiorari. On January 19, 2009, after the state supreme court denied the certiorari petition, the district court lifted its stay. Notably, Hyman has never sought state collateral review of his conviction and sentence. See N.C. Gen Stat. § 15A-1414 (specifying that defendant may pursue motion for appropriate relief (“MAR”) — North Carolina’s statutory procedure for collateral review — within ten days of entry of (Continued) 20 the state court unreasonably failed to recognize that Smallwood’s conflict arose not merely from having previously served as Speller’s attorney, but from Smallwood’s position as the only person able to testify that Speller made a highly inconsistent prior statement identifying the shooter as Demetrius Jordan, not Hyman.
J.A. 23. By its Order of March 31, 2010, the district court
granted the writ. The District Court Order addressed and
disposed of two issues: (1) whether the exculpatory witness
component of Hyman’s Sixth Amendment claim had been exhausted in
the North Carolina courts; and (2) whether Hyman was entitled to
relief under the Sixth Amendment.
Appropriately, the district court began with the
exhaustion issue. In its motion for summary judgment, the State
maintained that Hyman had failed to exhaust the exculpatory
witness component, in that he did not fairly present it to the
Court of Appeals of North Carolina. The State pointed out that
Hyman did not proffer any evidence or examine Smallwood at the
remand hearing regarding the possibility that she could have
withdrawn and testified, nor did he argue the issue in his Hyman
criminal judgment). But see id. § 15A-1415(b)(3) (providing that defendant may file MAR more than ten days after entry of judgment if “[t]he conviction was obtained in violation of the Constitution of the United States”); State v. Goodson, 600 S.E.2d 519, No. COA03-834, 2004 WL 1920948, at *4 (N.C. Ct. App. July 6, 2004) (unpublished table decision) (“[An MAR] based on [Sixth Amendment] grounds may be filed any time after the verdict is announced.”).
21 II brief. Moreover, according to the State, if Hyman were to
return to the state courts and attempt to raise the exculpatory
witness component anew, he would be procedurally barred from
doing so. As such, the State contended, Hyman had procedurally
defaulted the exculpatory witness component for purposes of
federal court review. The district court disagreed with the
State, premised on its determination that there was no failure
to exhaust because both the Court of Appeals and the Supreme
Court of North Carolina “were given a ‘full and fair
opportunity’ to consider the substance of [Hyman’s] claim.”
District Court Order 10 (quoting Larry v. Branker, 552 F.3d 356,
366 n.10 (4th Cir. 2009)).
Turning next to the merits of Hyman’s Sixth Amendment
argument, the district court, guided by Cuyler, reasoned that
“[o]nce a petitioner shows an actual conflict adversely affected
his representation by counsel, prejudice is presumed, and he is
entitled to relief.” District Court Order 12. Furthermore, “if
during pretrial representation counsel becomes a witness to
events at issue in the client’s case, there is a conflict with
great potential for adverse effect.” Id. at 14 (citing Rubin v.
Gee, 292 F.3d 396, 401-02 (4th Cir. 2002)). Here, the court
observed, Smallwood “chose to continue as counsel” rather than
“testify herself and proffer impeaching testimony,” even though
her evidence would have corroborated the testimony of Demetrius
22 Pugh that Jordan had actually murdered Bennett. Id. at 15.9
“Smallwood’s actual conflict of interest [thereby] adversely
affected her performance,” and Hyman was denied his Sixth
Amendment right to counsel. Id. The implicit conclusion of the
North Carolina courts to the contrary was, according to the
district court, “an objectively unreasonable application of
clearly established federal law to the facts of [Hyman’s] case.”
Id. at 16. The court therefore granted Hyman a writ of habeas
corpus.
The State has timely appealed from the district
court’s judgment granting the writ, and we possess jurisdiction
pursuant to 28 U.S.C. § 1291.
II.
We review de novo a district court’s decision to award
habeas corpus relief. See Bauberger v. Haynes, 632 F.3d 100,
103 (4th Cir. 2011). Our analysis is tempered by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
In accordance with AEDPA, a federal court may grant habeas
9 The district court recognized that Smallwood’s testimony would have been admissible at trial to impeach Speller and prove his prior inconsistent statement identifying Jordan as Bennett’s murderer, since the identity of the killer was the controlling material issue. See Order 13-14 (citing State v. Green, 250 S.E.2d 197, 203 (N.C. 1978)); see also State v. Batchelor, 660 S.E.2d 158, 161 (N.C. Ct. App. 2008).
23 corpus relief only insofar as (1) the state court adjudication
of the issue on its merits “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States”; or (2) the adjudication “resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).
III.
In this appeal, the State not only continues to
contest the merits of the exculpatory witness component of
Hyman’s Sixth Amendment claim, but also reiterates the
contention that Hyman failed to exhaust the exculpatory witness
component of the claim in the North Carolina courts and
procedurally defaulted federal review. Section 2254(b)(1)(A) of
Title 28 provides that a writ of habeas corpus shall not be
granted unless “the applicant has exhausted the remedies
available in the courts of the State.” Furthermore, “[a]n
applicant shall not be deemed to have exhausted the remedies
available in the courts of the State . . . if he has the right
under the law of the State to raise, by any available procedure,
the question presented.” 28 U.S.C. § 2254(c); see O’Sullivan
v. Boerckel, 526 U.S. 838, 844 (1999) (“Section 2254(c) requires
24 only that state prisoners give state courts a fair opportunity
to act on their claim.”).
As we explained in Breard v. Pruett, “[a] distinct but
related limit on the scope of federal habeas review is the
doctrine of procedural default.” 134 F.3d 615, 619 (4th Cir.
1998). One manner in which procedural default occurs is
when a habeas petitioner fails to exhaust available state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.
Id. (internal quotation marks omitted). Procedural default also
occurs “[i]f a state court clearly and expressly bases its
dismissal of a habeas petitioner’s claim on a state procedural
rule, and that procedural rule provides an independent and
adequate ground for the dismissal.” Id.
Notably, the Supreme Court of the United States has
recently instructed that,
[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state- law procedural principles to the contrary.
Harrington v. Richter, 131 S. Ct 770, 784 (2011). The Court
added, however, that “[t]he presumption may be overcome when
there is reason to think some other explanation for the state
court’s decision is more likely.” Id. (citing Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991)).
25 Here, the State contends that Hyman did not fairly
raise the exculpatory witness component in the North Carolina
courts and thereby “failed to exhaust his federal claim.” Br.
of Appellant 11. The State further maintains that, “[b]ecause
Hyman cannot now return to state court and raise his § 2254
claim anew, it is procedurally defaulted.” Id. Of course, as
heretofore discussed, neither the Court of Appeals nor the
Supreme Court of North Carolina has directly confronted the
procedural or substantive propriety of the exculpatory witness
component. Instead, the court of appeals decisions in Hyman I
and Hyman II each focused on the dual representation conflict
issue, and the state supreme court summarily denied Hyman’s
petition for certiorari.
Unfortunately, the basis for the North Carolina
courts’ lack of attention to the exculpatory witness conflict is
unclear — perhaps they did not consider that component of
Hyman’s Sixth Amendment claim to be fairly presented, perhaps
they meant to implicitly reject it on the merits, or perhaps
they simply overlooked it. Thus, we are uncertain whether, if
Hyman seeks to resurrect the exculpatory witness component in
the state courts, those courts will enforce a procedural bar.
In these unusual circumstances, we are constrained to
employ the “stay and abeyance procedure” approved by the Supreme
Court in connection with unexhausted § 2254 claims. See Rhines
26 v. Weber, 544 U.S. 269, 275-78 (2005). The Rhines Court
assessed how the lower federal courts should deal with “mixed”
habeas petitions (where certain constitutional claims have been
exhausted but others have not) in a post-AEDPA setting. See 544
U.S. at 269. Prior to AEDPA’s enactment, a district court could
dismiss a mixed habeas petition without prejudice and permit the
petitioner to return to state court on the unexhausted claims.
AEDPA, however, imposed a time constraint that required a § 2254
petitioner to seek federal habeas corpus relief within a year of
a final adjudication in the state courts. As such, the
dismissal of a mixed petition without prejudice is no longer a
feasible option for a federal court, in that the § 2254 petition
could ultimately be adjudged time-barred under AEDPA.
In recognizing an alternative to dismissal, the Rhines
Court stressed the federalism and comity-related importance of
permitting the state courts to assess constitutional claims in
the first instance — before a federal court does so:
“Because it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation, federal courts apply the doctrine of comity.”
544 U.S. at 274 (quoting Rose v. Lundy, 455 U.S. 509, 518
(1982)); see also Elmore v. Ozmint, No. 07-14 (4th Cir. Mar. 24,
2008) (unpublished order staying appeal involving mixed § 2254
petition “in the interests of federalism and comity”).
27 Additionally, as the Rhines Court explained, the doctrine of
comity counsels that a federal court
should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass on the matter.
544 U.S. at 274. With comity specifically in mind, the Court
concluded that, in the proper circumstances, a § 2254 petition
should be stayed for a reasonable time to enable the petitioner
to return to state court and pursue his arguably unexhausted
claim. Id. at 277-78. The Court has subsequently extended the
Rhines rationale beyond mixed § 2254 petitions. See Pace v.
DiGuglielmo, 544 U.S. 408, 416 (2005); see also Heleva v.
Brooks, 581 F.3d 187, 191-92 (3d Cir. 2009).
In its Pace decision, the Supreme Court pondered
whether the filing of an untimely application for State post-
conviction or collateral review tolls the AEDPA time bar
established in 28 U.S.C. § 2244(d)(2). 10 The Court ruled in the
negative, but went on to explain that
[a] prisoner seeking state post-conviction relief might avoid this predicament . . . by filing a ‘protective’ petition in federal court and asking the
10 Section 2244(d)(2) of Title 28 provides that “[t]he time during which a properly filed application for State post- conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”
28 federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.
Id. at 416. The stay and abeyance procedure was recommended by
the Pace Court without any discussion of whether the habeas
petitioner was pursuing a mixed § 2254 petition. To the
contrary, the Pace decision appears to authorize use of the stay
and abeyance procedure under any circumstances that could
warrant a state court resolution of a prisoner’s claims.
Before we review the district court’s award of § 2254
relief on the exculpatory witness component of Hyman’s Sixth
Amendment claim, the doctrines of federalism and comity
constrain us to provide the North Carolina courts with an
opportunity to weigh in on the procedural and substantive
issues. We are therefore content to stay this appeal pending
any appropriate state court proceedings. 11
IV.
Pursuant to the foregoing, we hereby stay this appeal
pending such other and further state court proceedings as may be
appropriate, or pending further order of this Court. During the
11 We take no position as to what, if any, procedural avenues may yet be available to Hyman in the Court of Appeals or Supreme Court of North Carolina. We observe, however, that Hyman could have recourse by way of North Carolina’s statutory MAR process. See supra note 8; N.C. Gen Stat. § 15A-1411 et seq.
29 pendency of the stay, we request that counsel — at least every
ninety days — provide us with appropriate status reports.
APPEAL STAYED