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

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


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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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