holding that determination by “state appeals court ... that the [defendants] had waived their right to conflict-free representation ... was an unreasonable determination of fact” under § 2254(d)(2) where the state court record was “devoid of documentation or evidence of th[e] purported waiver”
How later courts described this case
- holding that determination by “state appeals court ... that the [defendants] had waived their right to conflict-free representation ... was an unreasonable determination of fact” under § 2254(d)(2) where the state court record was “devoid of documentation or evidence of th[e] purported waiver”
- concluding that the district court did not abuse its “broad discretion” by granting an extension in light of the four-day delay and the lack of any prejudice or bad faith
- stating courts “look to the ‘last reasoned opinion,’ and where a higher state court has ruled on a petitioner’s motion on grounds different than those of the lower court, [courts] review the higher court’s decision alone”
- noting that the standard for assessing whether a state habeas court’s decision involved an unreasonable application of clearly established law “does not speak to the standard of review where a state court applies erroneous law.”
Written by the judges who cited it.
The opinion
Case: 10-60201 Document: 00511804952 Page: 1 Date Filed: 03/29/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 29, 2012
No. 10-60201
Lyle W. Cayce
Clerk
MARIE SALTS,
Petitioner-Appellee– Cross-Appellant.
v.
CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS, et al.
Respondents-Appellants–Cross-Appellees.
-----------------------------------------
MICHAEL SALTS,
Petitioner-Appellee– Cross-Appellant.
v.
CHRISTOPHER EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS, et al.
Respondents-Appellants–Cross-Appellees.
Appeals from the United States District Court
for the Northern District of Mississippi
Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit Judges.
BENAVIDES, Circuit Judge:
Respondents Christopher Epps, Commissioner of the Mississippi
Department of Corrections, and Jim Hood, Mississippi Attorney General,
(collectively, “the State”) appeal from the district court’s grant of Michael and
Marie Saltses’ petition for a writ of habeas corpus. The Saltses petitioned for
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No. 10-60201
habeas relief because, inter alia, the Mississippi Court of Appeals denied their
Sixth Amendment claim for ineffective assistance of counsel. Because the
Mississippi court’s decision was contrary to clearly established law, we AFFIRM
the district court’s grant of habeas relief under 28 U.S.C. § 2254.
I. BACKGROUND AND PROCEDURAL HISTORY
A. The Saltses’ conviction for embezzlement
Petitioners Michael and Marie Salts, proprietors of a family-run funeral-
home in Boonville, Mississippi, were charged with and convicted of
embezzlement in connection with their business. Part of the Saltses’ business
involved providing “funeral insurance,” or burial insurance, to many of their
customers. The Saltses provided this coverage for years through Gulf National
Insurance (“Gulf”).1
Many funeral-home clients would send their burial insurance premiums
directly to the Saltses, who would in turn forward the payments to Gulf. In
1994, however, Gulf terminated relations with the Saltses and stopped providing
insurance to their customers. Some of the Saltses’ customers were apparently
unaware of this fact, and they continued sending payments directly to the
Saltses. The State alleged that, in a number of instances, the Saltses kept these
payments rather than returning them to the clients. It was on this theory that
the Saltses were charged with six counts each of embezzlement of customer
funds.
The Saltses were indicted on May 12, 2003, but more than two years
passed before their eventual trial, which began on October 3, 2005. This delay
is attributable to a number of causes, including two judges recusing themselves
from the case, renovations at the courthouse, and a series of continuances
requested by the Saltses’ counsel. In the time between their indictment and
1
The following facts relating to the Saltses’ embezzlement conviction appear in Salts
v. State, 984 So.2d 1050, 1055 (Miss. App. 2008).
2
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No. 10-60201
trial, the Saltses had three lawyers. The first, Steve Farese, represented them
for only a few months before withdrawing due to “two separate irreconcilable
conflicts.” After Farese withdrew, the court set a trial date for March 3, 2004.
From the time Farese withdrew until several days before trial, the Salts were
represented by a second attorney, Michael Thorne.
During his time as the Saltses’ attorney, Thorne requested and received
a number of continuances. The first request cited the need to obtain discovery
materials from Farese, the complexity of the case, and the potential need to
retain an expert accountant. The second and third requests, filed in the
following months, explained that “this attorney has not been able to properly
prepare . . . due to other litigation involving these defendants.” In the third
request, the Saltses specifically waived their right to a speedy trial. In granting
this third request, the trial court set the case for trial on June 27, 2005, though
it noted that “[i]n the event the renovation of the Courthouse has not been
completed by the date set for trial, the case will be continued to a later date.”
On June 24, 2005, Thorne requested another continuance, in light of a
need to “travel[] to Florida with his Wife to seek treatment for a serious medical
condition.” The motion noted that Thorne had “also been advised that the
renovations to the Prentiss County Courthouse [we]re still under construction
and the use of the Courthouse [wa]s not available.” The trial judge granted the
motion and set the case for trial on September 6, 2005.
Then, on August 5, 2005, the Saltses filed a motion to transfer venue,
citing local media publicity surrounding the charges against them in Prentiss
County. The trial court granted the motion on September 13, 2005, transferring
venue to Lee County, Mississippi. The trial court set the case for trial in Lee
County on October 3, 2005.
On the eve of trial, September 28, 2005, Thorne made one final request for
continuance “due to illness” in his family. He indicated that he was not prepared
3
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No. 10-60201
for trial in five days and needed “additional time in which to prepare for the trial
of this matter to properly defend this case.” The very next day, the record shows
that the Saltses terminated Thorne as their attorney, citing “differ[e]nce of
opinion on the way this case ought to be represented.” At a pretrial hearing, the
Saltses clarified that this “difference of opinion” related to Thorne’s lack of
preparation for trial. They informed the Court that Thorne had not subpoenaed
witnesses or otherwise prepared their case.
Despite the Saltses’ decision to fire Thorne and his admitted lack of
preparation, the trial judge indicated at the pretrial conference that he would
not grant any further continuances and would proceed with the scheduled trial
date of October 3, 2005. When asked whether he would allow the Saltses time
at least to retain new counsel, the trial judge demurred:
Now, I don’t know what the problem is. And again, I don’t care
what the problem is. That’s not my prerogative to look into the
relationship between attorneys and their clients. It has taken me
in the neighborhood of six to eight months to arrive at a trial setting
for this, not entirely because of things the defendants did, but a
portion of that had to do with the fact that the courthouse in
Prentiss County was being remodeled or whatever, and we didn’t
have a courtroom to try this case, but finally it is set for trial. I
have a venire panel coming in on Monday and, any thoughts about
a continuance in this case, you can abandon that. Any attorney who
comes in to it at this late date must assume that it is for trial,
because I’m not going to continue it.
The Salts were in the end able to retain new counsel, Jim Waide, who continues
to represent them in this proceeding.
On the morning the trial was scheduled to begin—before the jury was
selected and sworn and before opening arguments—Waide filed a motion to
dismiss, or in the alternative, a motion to continue.2 Waide argued that “[t]here
2
The state-court trial record indicates that the court held oral argument on the motion
immediately before voir dire.
4
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No. 10-60201
is an obvious conflict of interest between the Defendants,” in light of the fact that
they were both charged with embezzlement in connection with their family
business, but both denied any embezzlement or knowledge of embezzlement.
Further, “during various time periods one Defendant operated the business and
during other times the other Defendant operated the business.”
Waide elaborated on this conflict of interest in court the morning of the
trial:
Your honor, the indictment in this case charges embezzlement. It
charges both defendants with embezzlement. There’s extensive
discovery in the case, boxes of materials, but I can’t see anything
that identifies which defendant is charged with embezzlement at
which times. And I also know that the proof is going to show that
at various years, it goes on for 17 years, but at various times one of
the defendants wouldn’t even been working in the business during
some of those times. There’s an obvious conflict of interest. It’s
obvious that one attorney should represent one defendant and
should argue that they haven’t shown that my defendant was even
working there at that particular time. So there’s an obvious conflict
of interest, and the prosecution knowing this case has gone on for 17
years and investigating it would have certainly known that from
time to time which one of them was active in the business. And one
lawyer can’t very well point the finger at one defendant and not at
the other one and say, well my—for example, I might say the last
three or four years, Mr. Salts has been working outside the
business, hasn’t even been involved in the business. But it’s hard
to make that argument representing both.
The trial court declined to inquire further into the circumstances of this alleged
conflict of interest and denied the motion to continue based on the need to obtain
separate counsel, apparently believing that the Saltses had previously waived
any conflict of interest. After disposing of the conflicts issue, the trial court
proceeded to select the jury and try the case.
At trial, the Saltses were each convicted of four counts of embezzlement
and each were sentenced to ten years imprisonment in Mississippi state prison.
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No. 10-60201
B. The Saltses’ habeas petition
After the Saltses were convicted at trial, they filed a direct appeal to the
Mississippi Court of Appeals, which resulted in a published opinion.3 On direct
appeal, the Saltses raised both claims that they now advance in this habeas
proceeding: (1) ineffective assistance of counsel stemming from joint
representation, and (2) ineffective assistance of counsel stemming from the trial
court’s denial of a continuance. The state court denied relief on both claims. The
Saltses petitioned the Mississippi Supreme Court for review, and their petition
was denied without opinion.
After exhausting their state remedies,4 the Saltses petitioned for a writ of
habeas corpus in the United States District Court for the Northern District of
Mississippi. A magistrate judge reviewed their petition and recommended that
the district court issue the writ based on their conflict-of-interest claim. The
district court considered objections from both parties and then adopted the
magistrate judge’s recommendation. The district court thus granted the Saltses’
petition on their joint representation claim but not their denial-of-continuance
claim. The State appealed from the district judge’s ruling. The Saltses cross-
appealed, arguing that they were entitled to relief on both of their claims.
II. STANDARD OF REVIEW
A. Habeas standard of review
In reviewing requests for federal habeas relief, this Court reviews the
district court’s findings of fact for clear error and its conclusions of law de novo,
3
Salts, 984 So.2d 1050.
4
The State conceded in its answer that the Saltses exhausted their state remedies, and
therefore waived objection on exhaustion grounds. See 28 U.S.C. § 2254(b)(1), (3); Bledsue v.
Johnson, 188 F.3d 250, 254 (5th Cir. 1999). The State’s waiver is understandable, as, contrary
to the dissent’s assertion, the Saltses discussed the issues raised in their petition, including
Holloway v. Arkansas, 435 U.S. 475 (1978), in their briefs to the state trial court and court of
appeals.
6
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No. 10-60201
“‘applying the same standards to the state court’s decision as did the district
court.’”5 The Saltses’ petition is subject to the heightened standard of review
under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).6 AEDPA
prohibits habeas relief unless the adjudication of the claim either (1) “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) “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.”7
“A state court decision is ‘contrary to . . . clearly established precedent if
the state court applies a rule that contradicts the governing law set forth in [the
Supreme Court’s] cases.’”8 It may also be contrary to established precedent if
“the state court confronts a set of facts that are materially indistinguishable
from a decision of [the Supreme Court] and nevertheless arrives at a result
different from [Supreme Court] precedent.”9 It is an unreasonable application
of Supreme Court precedent “if the state court identifies the correct governing
legal rule from [the] Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case.”10 AEPDA requires us to presume that the state
5
Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (quoting Harrison v. Quarterman,
496 F.3d 419, 423 (5th Cir. 2007)).
6
See 28 U.S.C. § 2254.
7
28 U.S.C. § 2254(d)(1), (2).
8
Wallace v. Quarterman, 516 F.3d 351, 354 (5th Cir. 2008) (quoting Williams v. Taylor,
529 U.S. 362, 405 (2000)) (alteration in Wallace).
9
Taylor, 529 U.S. at 406.
10
Id. at 407.
7
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No. 10-60201
court’s findings of fact are correct “unless the petitioner rebuts that presumption
by clear and convincing evidence.”11
B. No “qualified-waiver” standard of review applies here.
The Saltses argue that we should apply a different standard of review to
the State’s appeal in this case because it failed to timely object to the magistrate
judge’s findings and recommendations (F&R). This Court treats failure to timely
object to a Magistrate Judge’s F&R as a “qualified waiver” of the right to appeal:
failure to object timely to a magistrate judge’s report and
recommendation bars a party, except upon grounds of plain
error . . . , from attacking on appeal not only the proposed factual
findings . . . , but also the proposed legal conclusions, accepted . . .
by the district court, provided that the party has been served with
notice that such consequences will result from a failure to
object . . . .12
Here, we decline to find a “qualified waiver” of the right to appeal—and
thus we decline to vary our standard of review—because we conclude that the
State’s objections to the F&R were timely. The State filed its objections to the
F&R four days after the appointed deadline, at which time it also sought leave
of the district court to enlarge the time for filing. The State cited as its reason
for delay a malfunction in the electronic court filing (ECF) system. The district
court granted the State’s request for more time.
Because the district court extended the State’s deadline to object to the
F&R, its filing was timely unless the district court abused its discretion in
extending the deadline.13 When a party moves to extend a deadline provided by
the Federal Rules of Civil Procedure after the deadline has passed, the district
11
Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir. 2001) (citing 28 U.S.C. § 2254(e)(1)).
12
See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en
banc).
13
We review enlargements of time by the district court for abuse of discretion. Adams
v. Travelers Indem. Co. of Conn., 465 F.3d 156, 161 (5th Cir. 2006).
8
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court may grant the motion “for good cause . . . if the party failed to act because
of excusable neglect.”14 A leading treatise on civil procedure notes that “[t]he
district judge enjoys broad discretion to grant or deny an extension,” and the
“excusable neglect” standard is “intended and has proven to be quite elastic in
its application.”15 Professors Wright and Miller lay out a number of factors
relevant to the determination of “excusable neglect”: (1) “the possibility of
prejudice to the other parties,” (2) “the length of the applicant’s delay and its
impact on the proceeding,” (3) “the reason for the delay and whether it was
within the control of the movant,” and (4) “whether the movant has acted in good
faith.”16
We find that the district court did not abuse its “broad discretion” in
granting the State’s request for a four-day extension. The record reflects no
prejudice to the Saltses in the four-day delay, nor is there any indication that the
State’s delayed response had any impact on the proceeding. There is no evidence
of bad faith on the State’s part. The Saltses argue that the State’s delay was
within its control, and that the onus was on the State to ensure that its
electronic document had been filed properly. This may be true, but it does not
render an abuse of discretion the district judge’s determination that the State’s
neglect was excusable. Thus, we conclude that the State timely objected to the
F&R and decline to find a qualified waiver of the right to appeal.
III. JOINT REPRESENTATION
Multiple representation of criminal defendants may deprive them of their
Sixth Amendment right to counsel. Such representations may “‘prevent an
14
FED. R. CIV. P. 6(b)(1)(B).
15
WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1165 (collecting cases,
including a number of Fifth Circuit cases).
16
Id.
9
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attorney from challenging the admission of evidence prejudicial to one client but
perhaps favorable to another, or from arguing at the sentencing hearing the
relative involvement and culpability of his clients in order to minimize the
culpability of one by emphasizing that of another.’”17 It may also preclude a
defense attorney from “exploring possible plea negotiations and the possibility
of an agreement to testify for the prosecution.”18
Despite these dangers, the Supreme Court long ago held that joint
representation of criminal defendants “is not per se violative of constitutional
guarantees of effective assistance of counsel.”19 Two lines of cases are relevant
to a determination of when a joint representation deprives a defendant of his
right to counsel so as to require reversal of his conviction: one derives from the
Supreme Court’s decision in Holloway v. Arkansas20 (which applies where
counsel objects at trial to a multiple representation), the other from Cuyler v.
Sullivan21 (which governs multiple-representation situations where no timely
objection was raised).
The state court denied the Saltses’ joint-representation ineffective-
assistance claim because it found that: (1) the Saltses had waived their right to
conflict-free representation, and (2) they failed to prove an actual conflict of
interest stemming from the joint representation. The state court’s first
rationale—waiver—was an unreasonable determination of the facts in light of
17
Wheat v. United States, 486 U.S. 158, 160 (1988) (quoting Holloway v. Arkansas, 435
U.S. 475, 490 (1978)).
18
Holloway, 435 U.S. at 490.
19
Id. at 482.
20
435 U.S. 475 (1978).
21
446 U.S. 335 (1980).
10
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evidence in the state-court record. The second rationale—failure to demonstrate
an actual conflict of interest—was contrary to clearly established law.
A. The Saltses did not waive the right to counsel.
The Mississippi Court of Appeals held first that the Saltses had waived
any objection to the joint representation. This holding was an unreasonable
determination of the facts in light of the evidence presented in the state-court
proceeding.22
When the Saltses moved to continue the case in light of a joint-
representation conflict of interest, the trial judge denied their motion because
of his “recollection” that the Saltses had waived any objection to the conflict.23
The record is wholly devoid of documentation or evidence of this purported
waiver, as noted by the state appeals court,24 the district court, and even the
respondents in this proceeding. Moreover, by the end of trial, the trial judge’s
“recollection” of the Saltses’ waiver had changed substantially. At a post-trial
motion hearing, the trial judge averred that the Saltses’ counsel had failed to
raise a number of concerns, including potential conflicts of interest, in advance
of trial. At that point, the judge said, “I don’t recall any particular argument
concerning the conflict of interest. There was some discussion about a severance,
which I denied.”
Despite this complete lack of evidence of waiver, the state appeals court
nevertheless concluded that the Saltses had waived their right to conflict-free
representation. This determination rested solely on the earlier “recollections”
and “averments” of the trial judge and, somewhat incredibly, counsel for the
22
See 28 U.S.C. § 2254(d)(2).
23
Salts, 984 So.2d at 1061 (discussing state trial-court record).
24
Id. at 1062 (“A diligent search of the record has not revealed whether any discussion
of any conflict of interest was made or waived in court.”).
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State. Of course, the State’s position on the matter has also changed; it now
concedes that “the state court erred” in its waiver determination. Given the lack
of any supporting evidence in the record and the trial judge’s about-face on the
issue, this conclusion was an unreasonable determination of fact.
The Mississippi court’s waiver determination was also contrary to law:
specifically, the “high standar[d] of proof for the waiver of constitutional rights
[set forth by the Supreme Court in] Johnson v. Zerbst.”25 Indeed, in Zerbst, the
Court reiterated that courts are to “‘indulge every reasonable presumption
against waiver’ of fundamental constitutional rights.”26 In finding a waiver
based on the “recollections” of the trial judge—which he later recanted—with no
corroborating record evidence, the state appeals court neglected the Supreme
Court’s command to indulge “every reasonable presumption” against waiver.
B. The state court’s denial of the Saltses’
claim was contrary to clearly established law.
In the alternative, the state appeals court denied the Saltses’ joint-
representation claim for failure to demonstrate an actual conflict of interest.
The court applied Mississippi law, concluding that “a court need conduct an
inquiry into the propriety of a joint representation only when an actual conflict
has been shown.”27 The state court thus applied a rule that directly conflicts
with controlling Supreme Court precedent, rendering its decision contrary to law
under 28 U.S.C. § 2254(d)(1). Under the correct rule, the Saltses are entitled to
relief on their joint-representation ineffective-assistance claim.
25
Berghuis v. Thompkins, 130 S. Ct. 2250, 2268 (2010) (citing Johnson v. Zerbst, 304
U.S. 458 (1938)).
26
Zerbst, 304 U.S. at 464 (citing Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937);
Hodges v. Easton, 106 U.S. 408, 412 (1882)).
27
Salts, 984 So.2d at 1063.
12
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(1) The state court’s rule was contrary to Supreme Court precedent.
To begin, we consider the Supreme Court’s seminal multiple-
representations precedents: Holloway v. Arkansas and Cuyler v. Sullivan. The
Court’s decision in Holloway represents “an automatic reversal rule” that applies
“where counsel is forced to represent codefendants over his timely objection,
unless the trial court has determined that there is no conflict.”28 In other words,
where trial counsel timely raises a possible conflict of interest to the trial court,
reversal is automatic where the judge “fail[s] to either appoint separate counsel
or to take adequate steps to ascertain whether the risk was too remote to
warrant separate counsel.”29
The Supreme Court subsequently clarified, however, that Holloway’s
automatic reversal rule does not apply in situations where defense counsel fails
to timely object to a multiple representation. In Cuyler v. Sullivan, the Supreme
Court “declined to extend Holloway’s automatic reversal rule” to a situation
where “[n]either counsel nor anyone else objected to the multiple
representation.”30 Indeed, “absent objection, a defendant must demonstrate that
‘a conflict of interest actually affected the adequacy of his representation.’”31
Here, the state appeals court, contrary to Holloway, held that a trial court
need only inquire into the propriety of a joint representation when an actual
28
Mickens v. Taylor, 535 U.S. 162, 168 (2002) (discussing the Court’s earlier decision
in Holloway, 435 U.S. 475).
29
See Holloway, 486 U.S. at 160 (“The judge then failed either to appoint separate
counsel or to take adequate steps to ascertain whether the risk was too remote to warrant
separate counsel. We hold that the failure, in the face of the representations made by counsel
weeks before trial and again before the jury was empaneled, deprived petitioners of the
guarantee of ‘assistance of counsel.’”).
30
Mickens, 535 U.S. at 168 (discussing Cuyler, 446 U.S. at 348–49).
31
Id. (discussing Cuyler, 446 U.S. at 348–49)
13
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conflict has been shown.32 We note that the court did not decline to apply
Holloway because it found that Waide’s objection was untimely or made for
dilatory purposes. Rather, it held that, categorically, “a court need conduct an
inquiry into the propriety of a joint representation only when an actual conflict
has been shown.”33
The state appeals court’s decision was contrary to law because it wrongly
held that a defendant must always show actual conflict, even where the trial
court failed to investigate counsel’s timely motion.34 In other words, the state
court held that it is never sufficient for a defendant to bring to the court’s
attention a potential conflict; he must always concretely show an actual conflict.
This stated rule directly conflicts with the Supreme Court’s decision in
Holloway, which addresses itself to the possibility or potential for conflict. The
Holloway Court spoke of the trial judge’s duty “to refrain from embarrassing
counsel in the defense of an accused by insisting, or indeed, even suggesting,
that counsel undertake to concurrently represent interests which might diverge
32
See Salts, 984 So.2d at 1063 (“Because the Saltses never showed an actual conflict
of interest, there was no need for any inquiry by the trial court into the propriety of joint
representation.”).
33
Salts, 984 So.2d at 1063 (emphasis added).
34
The dissent objects to this characterization of the rule applied by the state appeals
court. The dissent , however, would read the state appeals court’s opinion to state what it does
not, rendering the state court’s use of “only” a nullity. Indeed, even the dissent’s
characterization of the state appeals court’s rule would be problematic. Cuyler, the Supreme
Court case the dissent presumes the state appeals court applied, requires a showing of actual
conflict when no objection, and thus no inquiry, occurred. See Cuyler, 446 U.S. at 348–50.
When such a conflict is shown, reversal is required. Id. The state court of appeals, however,
stated that an inquiry need only occur when an actual conflict was shown. Of course, if an
actual conflict is shown, then, under Cuyler, the defendants have demonstrated a Sixth
Amendment right to separate counsel. An inquiry at that point would serve no purpose.
14
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from those of his first client, when the possibility of that divergence is brought
home to the court.”35
The Supreme Court’s subsequent discussions of Holloway demonstrate
that its automatic reversal rule does not require a showing of actual conflict.
Indeed, in both Cuyler and Mickens, the Court reiterated the Holloway rule in
all its simplicity: “Holloway requires state trial courts to investigate timely
objections to multiple representation.”36 The Court in Cuyler did explain that,
absent a timely objection to a multiple representation, “nothing . . . requires state
courts themselves to initiate inquiries into the propriety of multiple
representations in every case.”37 But this holding does nothing to alter the
Holloway rule—reiterated by the Court in Mickens—which “creates an
automatic reversal rule . . . where defense counsel is forced to represent
codefendants over his timely objection, unless the trial court has determined that
there is no conflict.”38
In neither of these subsequent decisions did the Supreme Court hold that
the Holloway rule only operates on a showing of actual conflict. This makes
sense: to hold otherwise would vitiate the protections of Holloway’s per se rule.
The Holloway Court recognized that, where a trial court has failed to investigate
a potential conflict of interest brought to its attention, the record may not
conclusively reflect that conflict. By failing to investigate a potential conflict,
“the trial judge cut[s] off any opportunity of defense counsel to do more than
35
Holloway, 435 U.S. at 484–85 (quoting Glasser v. United States, 350 U.S. 60 (1942)
(emphasis from Holloway omitted, new emphasis added)).
36
Cuyler, 446 U.S. at 346.
37
Id. at 347 (emphasis added).
38
Mickens, 535 U.S. at 168 (emphasis added).
15
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No. 10-60201
make conclusory representations.”39 In other words, the trial court’s failure to
investigate potential conflicts timely brought to its attention may leave the
record devoid of specific and particularized evidence of such a conflict.
The State nevertheless argues that the state trial court implicitly applied
Holloway, and found it inapplicable because it found Waide’s motion to be
dilatory. Consequently, the State argues, we owe deference to that decision, and
may only grant habeas if it involved an unreasonable application of Holloway.
We do not agree.
First, it is not at all clear that the trial court’s failure to investigate the
potential conflict rested on a finding that Waide’s motion was dilatory. Rather,
the judge believed, incorrectly, that he had previously addressed the conflict and
the Saltses had waived any objection to conflict. At the hearing on Waide’s
motion, the parties disputed the support in the record for such a waiver and
Waide requested that his clients be put on the stand to testify, at which point the
judge stated:
Now, if we’re going to have a hearing, we’re going to put Mr. Thorne
on the stand, too, and find out what the discussion was. My
recollection is that [the Saltses’ waiver of this conflict of interest]
was aired in chambers and in open court, and this is another of the
last-minute tactics—I’m not going to grant a severance, or a
continuance, or anything else. We’re going to try it.
As Thorne, the Saltses’ previous counsel, was not present, any such hearing
would require significant delay. Further, even if the oblique reference to “last-
minute tactics” constitutes a finding that Waide’s motion was made for dilatory
purposes, this conclusion rests on an unreasonable determination of facts. The
reason he believed the motion to have been a “last-minute tactic” was that he
believed he had already addressed the issue. As noted above, the record is
39
Holloway, 435 U.S. at 484 n.7.
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wholly devoid of evidence of this fact, and the judge recanted this “recollection”
after the trial concluded.
Second, AEDPA directs this court to consider a state court’s “decision.”40
It is well settled that we look to the “last reasoned opinion,” and where a higher
state court has ruled on a petitioner’s motion on grounds different than those of
the lower court, we review the higher court’s decision alone.41 Here, regardless
of the ground upon which the trial court denied petitioner’s claim, the state
appeals court, as noted above, dismissed that claim because it erroneously
concluded that a petitioner must always show an actual conflict. Accordingly,
we review only the state appeals court’s decision. As stated above, we find that
decision was contrary to established Supreme Court precedent.
In sum, by applying the rule it did—that “a court need conduct an inquiry
into the propriety of a joint representation only when an actual conflict has been
shown”—the state appeals court applied a rule directly contrary to Holloway’s
imperative that state trial courts investigate timely objections to joint
representation. In other words, the state court elevated Cuyler to a universal
standard, to the detriment of Holloway, “apply[ing] a rule that contradicts the
governing law set forth in [the Supreme Court’s] cases.”42 This is the very
definition, under AEDPA, of the phrase “contrary to clearly established
precedent.”43
40
28 U.S.C. § 2254(d).
41
See Ylst. v. Nunnemaker, 501 U.S. 797, 801, 803 (1991) (finding lower court’s
dismissal of claim on grounds of procedural default not “immortal” where higher court reaches
the merits of a federal claim)
42
Taylor, 529 U.S. at 405.
43
Id.
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(2) Standard of review for relief.
Next, the Court must determine the standard by which to determine
whether the Saltses are entitled to relief under Holloway. The dissent argues
that Neal v. Puckett44 directs, under the guise of confining our review to the state
court’s decision, that we ignore the state appeals court’s application of law
contrary to Supreme Court precedent, and instead presume the state appeals
court identified and applied Holloway. The Court is then to determine whether
it can imagine any possible reasonable analysis of that precedent that could
support the state appeals court’s decision. Neal, however, considered a state
court of appeals’s decision identifying the correct legal rule and the question was
solely whether the state court was unreasonable in its application of that rule.45
Neal does not speak to the standard of review where a state court applies
erroneous law.
Nor can Neal be read beyond the situation before the Court there, to stand
for the proposition that, to grant habeas relief, the habeas court must always
determine that the relevant legal tests could not have been reasonably applied
by the state court to deny relief. Such a reading would require, for example, a
habeas court to assume a state court applied legal rules it did not, and then ask
whether such rules could still reasonably support the result. That reading,
however, would run afoul of the Supreme Court’s command that, where a state
court does not apply a legal test, “our review is not circumscribed by a state court
conclusion.”46
44
286 F.3d 230 (5th Cir. 2002) (en banc).
45
See id. at 246.
46
See Wiggins v. Smith, 539 U.S. 510, 534 (2003) (holding, where state court analyzed
only inadequate performance prong of Stickland, Court’s review of prejudice prong was de
novo); see also Rompilla v. Beard, 545 U.S. 374, 390 (2005) (holding, “[b]ecause the state courts
found the representation adequate, they never reached the issue of prejudice . . . , and so we
examine this element of Strickland claim de novo . . .”); Pondexter v. Quaterman, 537 F.3d 511,
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Indeed, applying Neal to the case before us would ignore the text of
AEDPA. The statute states habeas relief shall not be granted unless the state
court’s adjudication “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law . . . .”47 The
Supreme Court, in the seminal AEDPA case of Williams v. Taylor, stressed the
need to provide these two grounds with separate and independent meaning.48
The Saltses have shown that the state appeals court’s decision was “contrary to”
clearly established Federal law. That is sufficient to remove § 2254(d)(1)’s bar
to relief. They need not also show that the state appeals court’s decision
involved an “unreasonable application” of such law.49
Accordingly, as the Saltses have demonstrated that the Mississippi Court
of Appeal’s decision was “contrary to” established Supreme Court precedent,
they may obtain relief if they can show, on de novo review, that they are “in
custody in violation of the Constitution or laws or treaties of the United
States.”50
523–24 (5th Cir. 2008) (finding Wiggins and Rompilla changed law after Fifth Circuit had
previously reversed district court, relying on Neal v. Puckett, for preforming de novo review,
rendering law-of-the-case doctrine inapplicable). Of course, where a state court summarily
denies a petitioner’s motion, and provides no statement of its reasons, “the habeas petitioner’s
burden still must be met by showing there was no reasonable basis for the state court to deny
relief.” See Harrington v. Richter, 131 S. Ct. 770, 784 (2011). Here, however, the state court
provided its reason, and its reason was contrary to established Supreme Court precedent.
47
28 U.S.C. § 2254(d)(1) (emphasis added).
48
See 529 U.S. at 404.
49
See Williams, 529 U.S. at 412 (“Under § 2254(d)(1), the writ may issue only if one of
the two following conditions is satisfied—the state-court adjudication resulted in a decision
that (1) ‘was contrary to . . . clearly established Federal law, as determined by the Supreme
Court of the United States,’ or (2) ‘involved an unreasonable application of . . . clearly
established Federal law, as determined by the Supreme Court of the United States’”
(alteration in original)).
50
28 U.S.C. § 2254(a); see also Williams, 529 U.S. at 395–96 (analyzing petitioner’s
Strickland claim de novo after determining state court’s decision was “contrary to” and
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(3) The Saltses are entitled to relief under Holloway.
Holloway’s rule—not Cuyler’s actual-conflict standard—controls the
Saltses’ joint-representation claim in this case because the Saltses timely
objected to their joint representation. Their newly retained attorney, Mr. Waide,
objected to the representation before trial began, before the jury was selected
and sworn. This objection was not untimely or made for dilatory purposes, and
it was sufficient to trigger the trial court’s duty to investigate the propriety of
the joint representation.51 Because the trial court failed to investigate, reversal
is required under Holloway.
The Saltses did not retain attorney Waide until several days before their
trial was scheduled to begin. The timing of their retention of Waide coincided
with their previous counsel announcing to the court that he was not prepared to
try the case. On the Monday morning trial was scheduled to begin, after
spending the weekend reviewing the Saltses’ case, Waide moved to dismiss the
charges against them, or in the alternative, to continue the trial setting so they
could retain separate counsel. The motion informed the court of “an obvious
conflict of interest between the Defendants,” given that they both denied any
knowledge of the alleged embezzlement. Further, the motion explained that
“during various time periods one Defendant operated the business and during
other times the other Defendant operated the business.”
“involved an unreasonable application of” Supreme Court precedent); Barker v. Fleming, 423
F.3d 1085, 1094–95 (9th Cir. 2005) (analyzing Brady claim de novo after determining state
court’s decision was contrary to Supreme Court precedent), cert denied, 547 U.S. 1138.
51
The district court considered at length another objection to the joint representation,
this one filed by attorney Farese, the Saltses’ original trial counsel. Shortly after the
proceedings began, Farese moved to withdraw from the representation, citing, without
elaboration, “two irreconcilable conflicts.” The district court found that this motion was
sufficient to trigger the trial court’s duty to investigate under Holloway. We need not consider
this issue because we conclude that Waide’s pretrial motion was independently sufficient.
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Waide elaborated on this motion in open court the morning trial was
scheduled to begin:
Your honor, the indictment in this case charges embezzlement. It
charges both defendants with embezzlement. There’s extensive
discovery in the case, boxes of materials, but I can’t see anything
that identifies which defendant is charged with embezzlement at
which times. And I also know that the proof is going to show that
at various years, it goes on for 17 years, but at various times one of
the defendants wouldn’t even been working in the business during
some of those times. There’s an obvious conflict of interest. It’s
obvious that one attorney should represent one defendant and
should argue that they haven’t shown that my defendant was even
working there at that particular time. So there’s an obvious conflict
of interest, and the prosecution knowing this case has gone on for 17
years and investigating it would have certainly known that from
time to time which one of them was active in the business. And one
lawyer can’t very well point the finger at one defendant and not at
the other one and say, Well my—for example, I might say the last
three or four years, Mr. Salts has been working outside the
business, hasn’t even been involved in the business. But its hard to
make that argument representing both.
Waide’s motion to the trial court was sufficiently detailed to alert the court to a
potential conflict of interest, thus triggering the trial judge’s duty under
Holloway to either allow for separate counsel or investigate further to ensure no
conflict existed.52
The State urges that Waide’s motion did not trigger a duty to investigate
under Holloway because the motion was not timely. It is true that the Supreme
Court in Holloway clarified that “[w]hen an untimely motion for separate counsel
is made for dilatory purposes, our holding does not impair the trial court’s ability
to deal with counsel who result to such tactics.”53 But the record here does not
52
The state does not argue that this conversation on the morning of trial was itself a
Holloway hearing, nor did the state appeals court conclude that this pretrial conversation was
sufficient “investigation” of the potential conflict under Holloway.
53
Holloway, 435 U.S. at 486–87 (emphasis added).
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support a conclusion that Waide’s motion was “an untimely motion . . . made for
dilatory purposes.”54
The Supreme Court in Holloway did not explicitly define the phrase
“untimely motion . . . made for dilatory purposes.” However, the Court did note
that, in that case, all of the defendant’s objections to the joint representation
were timely, even a motion made on the morning trial was scheduled to begin,
before the jury was empaneled.55 The motion in Holloway is difficult to
distinguish from Waide’s motion in this case. Like the defendant’s attorney in
Holloway, Waide objected the morning trial was scheduled to begin, before the
jury was selected and sworn.56 For Waide, this was the earliest opportunity he
had to object to the joint representation.
Perhaps more important than the precise timing of Waide’s motion in this
case is that there is no indication whatever that it was “made for dilatory
purposes.” Waide objected to the Saltses’ joint representation at the earliest
possible opportunity: when he appeared in court the Monday after the Saltses
54
As there is no dispute of fact pertaining to the timing of or motive for Waide’s motion,
there is no need to accord deference to any state-court findings of fact as to such. Cf. Valdez,
274 F.3d at 948 & n.11 (noting § 2254(e)(1)’s presumption of correctness applies to state court
findings of fact and “unarticulated findings which are necessary to the state courts conclusion
of mixed law and fact”). The question here is whether the undisputed timing of Waide’s
motion was legally significant under Holloway, a question of law which, as stated above, we
review here de novo. See Nakimbugwe v. Gonzales, 475 F.3d 281, 284 (5th Cir. 2007) (noting,
although “[m]any determinations of timeliness are based on . . . assessment of facts and
circumstances,” determinations of timeliness grounded in legal construction are questions of
law).
55
In Holloway, the Supreme Court described both of defense counsel’s motions as
“timely.” 435 U.S. at 476 (“Petitioners, codefendants at trial, made timely motions for
appointment of separate counsel . . . .”). One of the motions was made several weeks before
trial and one made “before the jury was empaneled.” Holloway, 435 U.S. at 484.
56
The State makes much of the fact that Waide’s motion asked for a dismissal in the
alternative to a continuance because “a jury ha[d] already been called.” It is unclear why
Waide believed it was significant that potential jurors had been called for duty, given that jury
selection had not begun. We do not find this fact significant to our Holloway analysis.
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retained him. The record here indicates that the Saltses retained Waide on
Thursday, and that he spent the weekend reviewing their case, including
seventeen boxes of documents. Waide determined promptly that the Saltses had
conflicting interests and brought this conflict to the court’s attention when it
opened for business Monday morning. Moreover, although the Saltses were
represented for a two-year period prior to trial, in which time their previous
counsel filed a number of continuances, there is no indication in the record that
the Saltses themselves were the source of the delay.57 Rather, the record reflects
the delays were largely the result of illnesses in the family of the Saltses’s
previous counsel and courthouse construction. Finally, there is no indication
that Waide’s objection was meritless or was based on a misrepresentation of
facts.58
Our conclusion that Waide’s objection was not “untimely . . . [or] made for
dilatory purposes” should not be read to suggest that an objection to a joint
representation made in the hours before trial begins will always pass muster
under Holloway. Rather, our holding reflects the unique circumstances
surrounding this case. The Saltses retained Waide at the last minute, after their
previous counsel announced to the court that he was unprepared to try their case
on account of serious illness in his family. Our conclusion that Waide’s motion
was not made for dilatory purposes might be different if he himself had
represented the Saltses for longer, and yet had waited until the last minute to
object to the joint representation, or where the record reflects that the
defendants themselves have been the cause of delay.
57
In this aspect, we agree with the state court. See Salts, 984 So.2d at 1058 (noting
“the record reflects that the Saltses were not personally the source of the multiple
continuances”).
58
See Holloway, 435 U.S. at 486 n.10 (noting, although counsel filed dilatory motions,
the “courts have abundant power to deal with attorneys who misrepresent facts”).
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In sum, the state court’s decision was contrary to law because it applied
a rule that contradicts the governing law set forth in the Supreme Court’s cases.
Under the proper rule, the Saltses are entitled to relief on their ineffective-
assistance claim stemming from joint representation.59 We thus AFFIRM the
district court’s conditional grant of habeas relief, vacating the Saltses’
convictions and providing the State a window of 120 days in which to commence
a new prosecution.
59
We decline to reach the claim raised in the Saltses’ cross-appeal—an ineffective-
assistance claim stemming from the trial court’s denial of a continuance. Because we affirm
the district court’s grant of relief on the Saltses’ multiple-representation claim, we need not
consider their alternative claim.
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EDITH H. JONES, Chief Judge, dissenting:
With due respect to my colleagues, I cannot agree that the Mississippi
courts’ denial of relief to the Saltses was “contrary to” the Supreme Court’s
pronouncements. In Harrington v. Richter, 131 S. Ct. 770 (2011), the Court
emphasized, “If [§ 2254(d)’s] standard is difficult to meet, that is because it was
meant to be. . . . It preserves authority to issue the writ where there is no
possibility fairminded jurists could disagree that the state court’s decision
conflicts with [the Supreme] Court’s precedents. It goes no farther.”
Harrington, 131 S. Ct. at 786 (emphasis added) (internal quotation marks and
citation omitted). The majority instead critiques the Mississippi courts’
reasoning in a manner more appropriate to direct appellate review than to the
deferential review countenanced by AEDPA standards. To be precise, the
majority totally overlooks that federal courts may inquire only into the propriety
of state court decisions, not the correctness of all their reasoning. Neal v.
Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc). Even more pertinent, the
majority erroneously faults the Mississippi courts for failing to cite and ruling
“contrary to”Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173 (1978). The
Supreme Court holds, however, that state courts need not expressly cite or even
be aware of Supreme Court precedents–as long as their decisions do not
contradict the precedents. Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365
(2002).
A proper AEDPA review of the state court record and judicial decisions
reveals, in my view, a very real possibility fairminded jurists could disagree
whether the defendants timely invoked their counsel’s alleged conflict of interest
and were entitled to relief.1 Based on this failure, Holloway did not apply and
1
I do not quarrel with the majority’s resolution of the due process claim, nor with its
conclusion that the state court’s finding of waiver of any objection to joint representation was
unreasonable under § 2254(d)(2). The majority should have added that the Saltses bore the
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the state courts did not “contradict” Holloway in requiring proof of an actual
conflict before reversing the verdict. See Cuyler v. Sullivan, infra. Nor was the
state courts’ “decision” “unreasonable” when measured against the Supreme
Court precedents. 28 U.S.C. § 2254(d)(1). We have no authority to overturn
these convictions.
To explain the basis for the state court decisions, I supplement the
majority’s description of the record, review the applicable Supreme Court
precedents, and describe the flaws in the majority’s reasoning.
1. Background
The majority opinion under-emphasizes the extent to which the Saltses
successfully delayed trial and fails to recount the multiple deadlines for pretrial
motions. Significantly, it also fails to convey the trial court’s finding that the
defense’s motion regarding joint representation was untimely.
Michael and Marie Salts were convicted of embezzlement in connection
with their funeral-home business. They collected and kept for themselves
funeral insurance payments from customers, many of them old and poor, whose
insurance policies had actually been terminated. They were indicted on May 12,
2003, but their trial did not begin until October 3, 2005.
The Saltses’ first attorney, Steve Farese, was retained on July 3, 2003, and
moved to withdraw on September 2, 2003. His motion to withdraw cited “two
separate irreconcilable conflicts” which would leave “Defense Counsel [] ethically
and legally unable to defend either of the Defendants.” It also noted “that the
Defendants have been unable to fulfill the terms of their agreement of
employment of Mr. Farese.” The court granted the motion, set a status hearing
for September 29, 2003, and continued the case until sometime during the
burden of overcoming the state court’s waiver finding by clear and convincing evidence.
§ 2254(e)(1). See Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir. 2001).
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February 2004 term. Apparently beginning at the time Farese was released, the
Saltses were represented by Michael Thorne.2
Trial was scheduled for March 3, 2004. The Saltses requested a
continuance on February 23. Thorne said he had not yet received discovery from
Farese, though he had requested it on February 13 (three weeks before trial was
scheduled). He also noted that defendants might need to obtain an accountant
to testify. He said that he could not properly prepare to represent the
defendants without more time. The state did not object; the motion was granted
and trial was rescheduled for June 22, 2004.
On June 9, the Saltses requested a second continuance. Thorne said he
had been unable to prepare for trial properly “due to other litigation involving
these defendants.” He again cited the possible need for an accountant and said
he could not render adequate assistance if the case were not continued. The
state did not object to this request, and it was granted. Trial was rescheduled
for October 11, 2004.
On September 28, the Saltses requested a third continuance. Thorne
repeated his claim that he had not been able to prepare properly due to other
litigation involving these defendants, and he said that he could not render
adequate legal assistance absent a continuance. This time, the state was
opposed. The state observed that this was the third trial date and said it risked
real impairment of the prosecution in light of the age of the victims who would
serve as witnesses. Five of the six victims ranged from sixty-five to eighty-one
years of age, and each victim was a material, essential witness. Nevertheless,
the court granted a continuance. Trial was next scheduled for February 28,
2
The State requested that Farese not be permitted to withdraw until the Saltses obtained new
counsel. The Saltses were ordered to appear with new counsel at the September 29, 2003 hearing. Id. at
66.
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2005. It was continued again, however, after the newly assigned judge recused
himself.
Trial was next scheduled for June 27, with a proviso that it might be
continued if renovation of the courthouse was not complete by the trial date. On
June 24, the Saltses moved for a fifth continuance, the fourth at their request.
Thorne said that he would be leaving town on June 26, to travel to Florida for
his wife to seek medical treatment. He also said he had heard that the
courthouse was still undergoing renovations.3 The state countered that it was
willing to assemble a Prentiss County jury in a neighboring county, even if the
Prentiss County courthouse was unavailable, and reiterated its objections to
further delay, noting that the oldest victim was now eighty-two. The court
granted a fifth continuance and scheduled trial for September 6, 2005, setting
deadlines for discovery and pretrial motions of July 15 and August 1
respectively. Both parties were explicitly ordered to “file all motions having to
do with (1) change of venue, (2) discovery, (3) admissibility of evidence, (4) in
limine and any other matters on or before the 1st Day of August, 2005, or [they]
shall be deemed waived by the court.”
The court extended the discovery deadline in response to an agreed-to
request by Defendants, which was “due to a medical emergency.” It also
extended the motion deadline to August 5. Defendants filed their witness list on
August 3. Thorne filed various motions for the Saltses on the deadline of August
5, including a motion for change of venue, a motion to produce sealed records, a
motion to produce the grand jury list, a motion to dismiss, and a motion for
discovery of additional items.
On August 16, the day before the motion hearing, the Saltses moved again
for continuance, the sixth continuance and the fifth at their request. The motion
3
Ultimately the trial would be held in a neighboring county, further delaying it, at Defendants’
request.
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said Thorne’s father had become seriously ill and was in the hospital, and
requested a delay of the motion hearing. The court granted the motion,
continuing the trial and setting the motion hearing for September 6.
The court granted the Saltses’ motion for a transfer of venue and set a new
trial date—the seventh—of October 3, 2005, and a new deadline for “all pretrial
motions” of September 27, “or such motions and matters shall be deemed waived
by the court,” offering both parties a third deadline for pretrial motions, even
after a number of pretrial motions had been dealt with.
The Saltses moved for a seventh continuance on September 28, “due to
illness in Defendant counsel’s immediate family.” Thorne also requested
“additional time in which to prepare for the trial of this matter to properly
defend this case.” He did not in this motion, as he had in previous motions, say
he would be unable to represent the defendants without additional time.
On September 29, the Saltses fired Thorne, citing “a difference of opinion
on the way this case should be represented.” On Friday, September 30, Jim
Waide, their new attorney, filed an entry of appearance. On Monday, the
morning of trial, almost a week after the third final motions deadline, Waide
entered a motion to dismiss or continue, arguing that there was “an obvious
conflict of interest” between the defendants. He argued that separate attorneys
would each be able to argue that his client had not been working at the business
during the relevant period, but Waide could not make this argument as joint
counsel. The trial court denied the motion based in part on its recollection that
the Saltses had waived any conflict. The court said that this appeared to be
another of the last-minute tactics – I’m not going to grant a
severance, a continuance or anything else. We’re going to try it. It’s
taken me six months in an effort to get this thing to the courthouse
as it is. And Mr. Waide, I understand that you have just come into
this case. Because of that, that’s the only reason I even took the
matter up at all. But we are going to proceed with the trial of the
case.
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The Saltses were convicted at trial. Waide re-raised the conflict issue as
a ground for a new trial. In response the judge said:
I think I need to make some observations concerning, first of all, the
development of this case over a period of several years. The
defendants from the very beginning had every opportunity to raise
the question of conflict of interest as between the defendants. They
were represented by counsel for the entire period of time until
virtually the day before trial began.
Mr. Waide, I have great empathy for you having stepped in to this
case at the last instant, but in circumstances like that, counsel
entering the case kind of play the ball where it lies. What has
happened up to that time is in this instance according to your theory
of the case is unfortunate, but nevertheless, I can tell you and the
Salts that I personally insisted that Mr. Thorne file motions, and
only then did he respond with motions that I insisted with him that
he, if he wished to ask for a change of venue that he do that. Finally
he did. And this went on over a period of months, not days or weeks
for that matter. This went on for a long time . . . .
Over the period of time that we’re talking about I do not know of
any reason that motions could not have been filed. There are
various dates set aside during every year of the calendar for the
disposition of criminal and civil matters. All of these matters could
have been raised at any time way in advance of this. And I suppose
quite candidly I insisted that this case go to trial. And I think that’s
my responsibility, simply because of the fact that it had been on the
docket and it needed to be tried, and it did get tried . . . .
I think I have discussed sufficiently the attempted continuance at
the last minute. I think this should be viewed again in the context
of what I said earlier. I personally directed the filing of motions,
and had they been timely filed there would be a total record of all
this. But these things were done–I don’t recall any particular
argument concerning the conflict of interest. There was some
discussion about a severance, which I denied. But again, in the
context of when all this took place, I think it’s interesting that, you
know, that has some bearing on this.
SR Vol. 10 at 797-98.
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They appealed to the Mississippi Court of Appeals, arguing ineffective
assistance of counsel based on (1) the joint representation, and (2) the denial of
a seventh continuance. The Mississippi Court of Appeals published an opinion
affirming the conviction. Salts, 984 So.2d 1050 (Miss. Ct. App. 2008). Regarding
the joint representation claims, it found that the Saltses had waived any
objections to joint representation, and held in the alternative that under
Mississippi law (and Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708 (1980)) the
Saltses were required to show an actual conflict, rather than simply the
possibility of a conflict. Salts, 984 So.2d at 1061-62.
2. Supreme Court Precedents
Three Supreme Court cases, none directly on point, furnish guideposts for
the circumstances under which joint representation of codefendants may result
in a conflict of counsel’s duties that rises to a denial of counsel under the Sixth
Amendment.
In Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173 (1978), the Court
held that when counsel for multiple defendants informs the criminal trial court
of the potential for the joint representation to create a conflict of interest, and
timely objects to the multiple representation, seeking appointment of separate
counsel, the trial court must investigate the risk of a conflict of interest.
Otherwise, the verdict must be automatically reversed, because prejudice is
presumed where counsel timely objects to the joint representation. Id. at 484,
98 S. Ct. at 1179. The Court noted “that the failure, in the face of the
representations made by counsel weeks before trial and again before the jury
was empaneled, deprived petitioners of the guarantee of ‘assistance of counsel.’”
Id.4 The Court held that reversal should be automatic, but limited its holding
4
In Holloway, joint counsel had been appointed for defendants on August 5, and
counsel had moved on August 13 for the court to appoint separate counsel. The court denied
the motion without adequate inquiry, and the question before the Supreme Court was whether
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to situations where the objection was (1) timely and (2) based on defense
counsel’s representation regarding a conflict. Id.
The Court noted the danger that crediting counsel’s representation of a
conflict could lead to abuses “for the purposes of delay or obstruction of the
orderly conduct of a trial,” but said that its fact-limited holding “does not impair
the trial court’s ability to deal with counsel who resort to such tactics” “[w]hen
an untimely motion for separate counsel is made for dilatory purposes.” Rather,
“[i]n this case . . .[,] no prospect of dilatory practices was present[.]” Id. at
486-87, 98 S. Ct. at 1180. The dissent agreed, in discussing the requirement of
timeliness, that “[o]rdinarily defense counsel has the obligation to raise
objections to joint representation as early as possible before the commencement
of the trial.” Id. at 495, 98 S. Ct. at 1184 (Powell, J., dissenting).
In Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708 (1980), the Court again
addressed the possibility of conflict of interest arising from multiple
representation of criminal defendants, but this time the defendant had raised
no objection in the trial court. Id. at 337-38, 100 S. Ct. at 1712. The Court held
that where counsel makes no objection, a court need not initiate an inquiry into
the potential for a conflict of interest unless it “knows or reasonably should know
that a particular conflict exists.” Id. at 347, 100 S. Ct. at 1717. On appeal or
collateral review, the defendant who failed to object at trial must demonstrate
that an actual conflict of interest adversely affected his defense. The Court
characterized Holloway as requiring “state trial courts to investigate timely
objections to multiple representation.” Cuyler, 446 U.S. at 346, 100 S. Ct. at
1717. But
“[d]efense counsel have an ethical obligation to . . . advise the court
promptly when a conflict of interest arises during the course of trial.
such denial warranted automatic reversal, or reversal only if the defendants could
demonstrate prejudice.
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Absent special circumstances, therefore, trial courts may assume
either that multiple representation entails no conflict or that the
lawyer and his clients knowingly accept such risk of conflict as may
exist.”
Id. at 346-47, 100 S. Ct. at1717.
Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237 (2001), is the third case
concerning conflicts arising from joint representation. This time, the Court held
that even where the trial court knew or reasonably should have known of a
conflict arising from joint representation, but there was no objection to the
representation, a defendant, to prevail, must still demonstrate that counsel
performed defectively as a result of the conflict. Id. at 173-74, 122 S. Ct. at 1245.
The Court reiterated that “Holloway . . . creates an automatic reversal rule only
where defense counsel is forced to represent codefendants over his timely
objection[.]” Id. at 168, 122 S. Ct. at1241-42.
3. Legal Rules Applied
The Mississippi Court of Appeals held, as an alternative to its waiver
finding, that “because the Saltses never showed an actual conflict of interest,
there was no need for any inquiry by the trial court into the propriety of joint
representation.” Salts, 984 So.2d at 1063. The court addressed the two primary
cases cited by the Saltses in their brief, Smith v. State, 666 So.2d 810 (Miss.
1995), and Armstrong v. State, 573 So.2d 1329 (Miss. 1990), both of which had
reversed a verdict where there was an actual conflict of interest.5 It found these
cases distinguishable on the ground that no actual conflict had been
demonstrated here.
Instead, the court relied on its previous decision in Witt v. State, 781 So.2d
135 (Miss. Ct. App. 2000), which held that without reason to suppose that an
5
Of note, both these cases cite Holloway solely for its dicta regarding the nature and
dangers of conflicts.
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actual conflict existed, the trial court was not required to inquire into the
propriety of multiple representation. Id. at 138. The Witt court derived this
holding almost word-for-word from Cuyler’s dictate that “unless the trial court
knows or reasonably should know that a particular conflict exists, the court need
not initiate an inquiry.” Witt, 781 So.2d at 138, quoting Cuyler, 446 U.S. at 347,
100 S. Ct. at 1717. The Mississippi Court of Appeals applied Witt to say that “a
court needs to conduct an inquiry into the propriety of a joint representation only
when an actual conflict has been shown.”
The majority opinion faults the state court for failing to acknowledge
Holloway or the fact that Holloway and Cuyler create different rules. It says
that the state appeals court applied a rule directly contrary to Holloway’s
requirement of investigation of timely objections. It concludes that the rule
applied by the state court (a court need conduct an inquiry only when an actual
conflict has been shown) directly conflicts with Holloway’s holding (where
defendant’s counsel timely objects and says there is a conflict, the court must
initiate an inquiry), and that relief is thus warranted under § 2254(d)(1).
As I stated at the outset, I believe this reasoning and conclusion are
seriously mistaken in three ways: the majority opinion evaluates the state
court’s reasoning rather than its decision; it ignores the lack of briefing on
Holloway at the state court; and it assumes that Holloway compels relief despite
considerable evidence that the motion in this case was untimely and that the
trial court clearly found it to be untimely.
In the first place, the majority opinion relies entirely on the reasoning of
the state court to invalidate the state court’s conclusion, which as I will show is
otherwise easily defensible. This is error under Neal v. Puckett, supra, a case
decided by our court en banc.6 Neal, in turn, derives from AEDPA, which
6
To the extent that evaluating the reasoning of the state court is inevitable, the
proposed opinion errs in its reading of the state court’s opinion. The majority thus states:“The
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authorizes federal courts to grant habeas relief only for state court “decisions,”
not “opinions,” that contravene its terms, 28 U.S.C. § 2254(d); see also
Harrington, supra, ___ U.S. ___, 131 S. Ct. at 784 (AEDPA refers only to a
“decision” resulting from an adjudication of a petitioner’s claim on the merits).
Second, the majority opinion faults the state court for “ignoring the
existence of” Holloway’s “rule” of automatic reversal–a rule, by the way, that
was never cited in either party’s briefing at the Mississippi Court of Appeals.
The briefs filed in the state court of appeals focused on Cuyler and state law.
The Saltses’ initial brief to the Court of Appeals did not cite Holloway for the
purportedly relevant automatic-reversal rule; their reply brief cited Holloway’s
discussion of the sufficiency of counsel’s timely objection to demonstrate
prejudice, but still did not cite Holloway’s holding.
Nevertheless, the majority opinion is premised on the square applicability
of Holloway and the majority’s view that the state court contradicted Holloway
by requiring a party to show an actual conflict. Two mistakes inhere in this
reasoning. The Supreme Court holds that even if a state court fails to mention
controlling precedent (of the Supreme Court), the state’s ultimate decision may
still be supportable for AEDPA purposes. See Early v. Packer, supra.
Additionally, the majority’s parsing of Holloway begs the relevant question
under AEDPA, which is whether fairminded jurists can disagree about whether
Holloway applies here. See Harrington v. Richter, supra. The state court could
reasonably have concluded that Holloway is inapposite because counsel’s motion
state appeals court[] wrongly held that a defendant must always show actual conflict, even
where the trial court failed to investigate counsel’s timely motion.” This is simply not what
the state court said; the state court did not actually say that its holding would apply even
where the trial court failed to investigate a timely motion. The state court opinion is more
fairly read as stating the rule (enunciated by Cuyler, which it quotes) that a showing of a
particular conflict is required absent “special circumstances” (Cuyler’s words) such as a timely
objection. If the state court assumed the objection was not timely, a perfectly reasonable and
almost certainly correct assumption, then no special circumstances existed, and counsel should
have demonstrated an actual conflict.
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was untimely raised. So viewed, the state court’s decision is perfectly consistent
with Holloway as well as Cuyler and Mickens.
Thus, the most important error in the majority is its assumption that the
motion for separate counsel was timely in the face of overwhelming
circumstances to the contrary and a state court finding that deserves deference
under § 2254(e)(1). The majority opinion finds timeliness because Waide
objected “before trial began, before the jury was selected and sworn.” It
conclusorily asserts that the motion was not “made for dilatory purposes.” It
says that “the record here does not support a conclusion that Waide’s motion was
an untimely motion . . . made for dilatory purposes.” These contentions are
indefensible.
The Saltses were represented continuously by reputable, highly qualified
counsel, yet they missed two years of opportunities to object to the joint
representation. Further, they forewent two final pretrial motion deadlines (the
August 5 and September 27 deadlines), for at least one of which Thorne had filed
several motions.
The majority opinion relies heavily on the special circumstances faced by
attorney Waide in this case: it concludes that his motion for separate counsel
could not have been made for dilatory purposes because he had just begun
representing the Saltses and had no previous opportunity to lodge this objection.
It suggests this consideration is “[p]erhaps more important” than the timeliness
of the motion. But this is not accurate. Holloway applies only to timely
objections to joint representation; counsel’s dilatory purpose is not an additional
element that Holloway demands to establish untimeliness. But if this were the
case, the record reasonably supports a conclusion that the motion was filed for
dilatory purposes. Waide made this clear in the hearing, as he also argued a
motion to continue trial and contended that he had insufficient time to prepare.
Obviously, he felt his clients would benefit from an additional delay to the trial.
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Moreover, since no previous counsel had pointed out this alleged conflict, the
objective support for Waide’s motion is doubtful.
In fact, the trial court’s conclusion here, that the motion constituted
another delay tactic, was reasonable for precisely the reasons contemplated by
Cuyler, Mickens, and Holloway: “Defense counsel have an ethical obligation to
. . . advise the court promptly when a conflict of interest arises during the course
of a trial. [T]herefore, trial courts may assume either that multiple
representation entails no conflict or that the lawyer and his clients knowingly
accept such risk of conflict as may exist.” Cuyler, 446 U.S. at 346-47, 100 S. Ct.
at 1717. Given that two motion deadlines and two years had passed, and the
date for trial had come, the trial court had every right under Cuyler to assume
that the representation entailed no conflict.
The majority opinion implies that when Waide took over, any motions
which he concluded were advisable were timely, regardless of any deadlines
faced by previous counsel. This is unrealistic as a matter of court management,
and inconsistent with the record. The trial court, whose explanation after trial
is not recounted by the majority opinion, places the untimeliness in full context.
The trial court clearly found that the motion was not timely. This conclusion
was not disputed by the Mississippi Court of Appeals and would easily justify a
decision not to address Holloway in its opinion.
Perhaps the majority simply overlooked this post-trial colloquy. Instead
of reflecting on the judge’s extended explanation why the motion was not timely,
the majority opinion exclusively cites the trial court’s somewhat confusing
answer to the initial motion on the morning of trial, in which the court said, “this
is another of the last-minute tactics[.]” The majority conclude,
Even if this oblique reference . . . constitutes a finding that Waide’s
motion was made for dilatory purposes, this conclusion rests on an
unreasonable determination of the facts. The reason [the judge
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believed the motion to have been a ‘last-minute tactic’ was that he
believed he had already addressed the issue.
Thus, “to the extent the trial court declined to investigate Waide’s objection
because it was dilatory, its conclusion is not entitled to AEDPA deference
because it rests on an unreasonable determination of facts.” Of course, it is not
clear at all that this was the judge’s reason, in light of his post-trial explanation
that the motion was obviously untimely and should have been filed, if at all, by
Thorne prior to the previous deadlines. Additionally, the majority opinion skips
the proper analysis. Untimeliness is a state-court finding of fact, which the
Saltses must rebut under AEDPA by clear and convincing evidence. § 2254(e)(1).
See Valdez v. Cockrell, 274 F.3d at 948 (presumption of correctness applies to
state court findings, both explicit findings and findings which can be implied
from explicit conclusions of law). This they did not do. The majority’s
conclusion that the state court’s decision was “contrary” to Holloway depends
crucially on the majority’s own almost-undefended factual finding that the
motion was timely, a finding that requires it to ignore not only the years of
continuances and missed deadlines that preceded that motion, but also the trial
court’s extended explanation of the motion’s untimeliness.
The bottom line is that to apply Holloway, the majority must conclude not
only that Waide’s motion on the day of trial was timely, but that the motion was
so clearly timely that no fairminded jurist could disagree. Harrington, supra.
Is it possible that no fairminded jurist could think a motion filed after more than
two years and two motions deadlines was untimely? I think not. I think the
record demonstrates that the Mississippi courts could reasonably have concluded
that the Saltses, having failed to prove any actual conflict imposed on their trial
counsel, or any disadvantage to their defense, were unable to satisfy Cuyler or
Mickens. The state court’s decision is consistent and not in conflict with the
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holding of Holloway because the objection to joint representation was untimely.
Habeas relief should be denied.
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