           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2     Harris v. Carter                             No. 02-3114
        ELECTRONIC CITATION: 2003 FED App. 0255P (6th Cir.)
                    File Name: 03a0255p.06                                LITIGATION, Cleveland, Ohio, for Appellant. Theresa G.
                                                                          Haire, PUBLIC DEFENDER’S OFFICE, OHIO PUBLIC
                                                                          DEFENDER COMMISSION, Columbus, Ohio, for Appellee.
UNITED STATES COURT OF APPEALS                                            ON BRIEF: Mark Joseph Zemba, OFFICE OF THE
                                                                          ATTORNEY GENERAL OF OHIO, CORRECTIONS
                  FOR THE SIXTH CIRCUIT                                   LITIGATION, Cleveland, Ohio, for Appellant. Theresa G.
                    _________________                                     Haire, PUBLIC DEFENDER’S OFFICE, OHIO PUBLIC
                                                                          DEFENDER COMMISSION, Columbus, Ohio, for Appellee.
 EZZARD CHARLES HARRIS,          X
          Petitioner-Appellee, -                                                              _________________
                                  -
                                  -  No. 02-3114                                                  OPINION
           v.                     -                                                           _________________
                                   >
                                  ,                                          KENNEDY, Circuit Judge. Harold E. Carter, Warden,
 HAROLD E. CARTER , Warden, -
       Respondent-Appellant. -                                            appeals the district court’s conditional grant of habeas relief
                                                                          to Ezzard Harris. The district court granted the petition after
                                 N                                        concluding (1) that Harris was presumptively denied his Sixth
      Appeal from the United States District Court                        Amendment right to effective assistance of counsel when the
      for the Northern District of Ohio at Toledo.                        state trial court failed to inquire as to whether his counsel had
     No. 00-07336—John W. Potter, District Judge.                         a conflict of interest after being so advised by counsel, and (2)
                                                                          that Harris was denied his Sixth Amendment right to effective
                     Argued: June 19, 2003                                assistance of counsel due to defense counsel’s actual conflict
                                                                          of interest. For the foregoing reasons, we AFFIRM the
               Decided and Filed: July 29, 2003                           district court’s decision to grant the writ.

        Before: KENNEDY and COLE, Circuit Judges;                                                        I.
                 WILLIAMS, District Judge.*
                                                                            Ezzard Harris and Kevin Payton were charged in state court
                      _________________                                   with various offenses arising out of a drive-by shooting
                                                                          incident in Fremont, Ohio. Harris and Payton were
                            COUNSEL                                       represented by Attorney George Evans. Evans did not foresee
                                                                          a conflict of interest when he undertook the joint
ARGUED: Mark Joseph Zemba, OFFICE OF THE                                  representation. Harris and Payton told Evans that neither
ATTORNEY GENERAL OF OHIO, CORRECTIONS                                     would accept a plea bargain in exchange for testimony against
                                                                          the other. Evans planned a common defense for presentation
                                                                          at what was expected to be a joint trial. On the day that
    *
                                                                          Harris and Payton were scheduled for trial, the state trial court
     The Honorab le Glen M. W illiams, United States District Judge for   sua sponte ordered Payton to be tried before Harris. Payton
the Western District of Virginia, sitting by designation.

                                  1
No. 02-3114                            Harris v. Carter         3   4     Harris v. Carter                             No. 02-3114

had been convicted, but not sentenced, when Harris’ trial           that he was not the shooter. Evans did not cross-examine
began.                                                              Payton. The jury found Harris guilty as charged.
  Payton invoked his Fifth Amendment right against self-              On direct appeal, Harris claimed that “[t]he Court of
incrimination when called to testify at Harris’ trial. The          Common Pleas committed reversible error when it permitted
prosecution asked the trial court to order Payton to testify        testimony of co-defendant Kevin Peyton [sic] and Mr. Harris
under a grant of immunity from prosecution for any                  was denied effective assistance of counsel because his trial
additional crimes related to the drive-by shooting incident,        counsel could not effectively represent him while representing
with the exception of perjury and falsification. Immediately        Mr. Peyton [sic] at the same time.” The Ohio Court of
after the trial court granted the request, the following            Appeals denied the appeal. The Ohio Supreme Court denied
exchange took place between the trial judge and Evans:              leave to appeal.
  MR. EVANS: Your Honor, may I request that Mr.                       While Harris’ direct appeal was still pending before the
  Payton, due–in lieu of the fact that he’s, for all intents        Ohio Supreme Court, he applied to reopen that appeal under
  and purposes, indigent since he’s in jail, be assigned            Ohio Rule of Appellate Procedure 26(B), claiming in relevant
  appointed counsel for the purpose of representing him             part that “Harris was denied the effective assistance of
  during his questioning here?                                      counsel when defense counsel created a conflict of interest by
  THE COURT: The only thing he–He has immunity, so                  representing Harris and his co-defendant, knowing that the
  there’s really no need for that.                                  co-defendant, like Harris, had denied responsibility, but
  MR. EVANS: Right. I understand that, your Honor.                  knowing also that the co-defendant might be called to testify
  But he cannot be given immunity from falsification. And           and would implicate Harris as the shooter.” The Ohio Court
  there’s no indication, you know, I mean one way or the            of Appeals denied the application, and the Ohio Supreme
  other, so to speak, that–Let’s put it this way. We know           Court denied leave to appeal.
  he’s given a prior statement to the police, and we know
  that if that prior statement was an attempt to mislead a            On June 5, 2000, Harris filed a petition for a writ of habeas
  public official in their duties that he could be subject to       corpus claiming that “Petitioner was denied the effective
  criminal liability for that. And I think–I’m just–You             assistance of counsel due to his lawyer’s conflict of interest.”
  now, I don’t know if Mr. Payton is aware of that, so to           The district court initially denied Harris’ petition based on its
  speak. And I represent him, but clearly if he’s going to          conclusion that the petition was time barred by the one-year
  be given immunity I am suggesting that that would cause           limitations period of 28 U.S.C. § 2244(d)(2) because a Rule
  a problem for me to represent him right now, and Mr.              26(B) application was part of Ohio’s collateral review
  Harris.                                                           process. Harris filed a motion under Federal Rule of Civil
  THE COURT: Because I’ve given him immunity, I                     Procedure 59(e) to alter or amend the judgment, which the
  don’t see the problem. Bring in the jury.                         district court granted in light of the rule established in
                                                                    Bronaugh v. Ohio, 235 F.3d 280 (6th Cir. 2000) (holding that
  On direct examination, Payton testified that he and Harris        a Rule 26(B) application must be analyzed under
were the only men in the van identified as being involved in        § 2244(d)(1)(A) as part of Ohio’s direct review process). The
the drive-by shooting and that he was the driver. Payton also       district court held an evidentiary hearing on the issue of
testified that he was in the van when the victims were shot but     whether Harris’ trial counsel was ineffective as a result of an
No. 02-3114                              Harris v. Carter       5    6     Harris v. Carter                             No. 02-3114

actual conflict of interest. After the hearing, the district court      A state court decision is contrary to clearly established
granted Harris habeas relief, ordering that he be released from      federal law “if the state court arrives at a conclusion opposite
custody unless granted a new trial within ninety days. The           that reached by [the Supreme] Court on a question of law or
State filed a timely notice of appeal.                               if the state court decides a case differently than [the Supreme]
                                                                     Court has on a set of materially indistinguishable facts.”
                               II.                                   Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state
                                                                     court decision is an unreasonable application of clearly
  Harris claims that he is entitled to habeas relief on the          established federal law “if the state court identifies the correct
ground that his Sixth Amendment right to effective assistance        governing legal principle from [the Supreme] Court’s
of counsel was violated due to his lawyer’s conflict of              decisions but unreasonably applies that principle to the facts
interest. This Court reviews de novo the district court’s            of the prisoner’s case.” Id. at 413. The Supreme Court has
conclusions of law, including mixed questions of law and             cautioned that a “federal habeas court may not issue the writ
fact, and its findings of fact for clear error. Moss v. Hofbauer,    simply because that court concludes in its independent
286 F.3d 851, 858 (6th Cir. 2002). Section 2254(d) of title 28       judgment that the relevant state-court decision applied clearly
of the United States Code sets forth the standard for granting       established law erroneously or incorrectly. Rather, that
a writ of habeas corpus:                                             application must also be unreasonable.” Id. at 411.
    An application for a writ of habeas corpus on behalf of            To show a violation of the Sixth Amendment right to
  a person in custody pursuant to the judgment of a State            counsel, clearly established Supreme Court precedent requires
  court shall not be granted with respect to any claim that          a defendant to demonstrate (1) that his or her attorney “made
  was adjudicated on the merits in State court proceedings           errors so serious that counsel was not functioning as the
  unless the adjudication of the claim–                              ‘counsel’ guaranteed the defendant by the Sixth
    (1) resulted in a decision that was contrary to, or              Amendment,” and (2) that the attorney’s deficient
  involved an unreasonable application of, clearly                   performance was so prejudicial that it “deprive[d] the
  established Federal law, as determined by the Supreme              defendant of a fair trial, a trial whose result is reliable.”
  Court of the United States; or                                     Strickland v. Washington, 466 U.S. 668, 687 (1984). In the
    (2) resulted in a decision that was based on an                  context of an alleged conflict of interest in representation, the
  unreasonable determination of the facts in light of the            test for a Sixth Amendment violation has been modified by
  evidence presented in the State court proceeding.                  clearly established Supreme Court precedent. In cases where
                                                                     a defendant or defense counsel makes a timely objection to
The parties do not dispute the reasonableness of the facts           joint representation based on an asserted conflict of interests
determined in the state court proceedings. Thus, to be entitled      and the trial court fails to inquire as to whether the conflict
to relief under § 2254(d), this Court must find that the             warrants the appointment of separate counsel, prejudice is
decision of the Ohio Court of Appeals was either contrary to,        presumed and reversal is automatic. Holloway v. Arkansas,
or an unreasonable application of, the Supreme Court’s               435 U.S. 475, 484-88 (1978); see also Cuyler v. Sullivan, 446
clearly established precedents. Price v. Vincent, 123 S.Ct.          U.S. 335, 346 (1980) (“Holloway requires state trial courts to
1848, 1852-53 (2003).                                                investigate timely objections to multiple representation.”).
                                                                     The issue presented to the Holloway Court was whether co-
                                                                     defendants at trial were denied their Sixth Amendment right
No. 02-3114                             Harris v. Carter      7    8    Harris v. Carter                            No. 02-3114

to counsel when the co-defendants “made timely motions for         interest holding, the district court found that Payton’s
appointment of separate counsel, based on the representations      testimony had clearly implicated Harris, that the manner in
of their appointed counsel that, because of confidential           which Payton testified was damaging to Harris, and that a
information received from the codefendants, he was                 portion of Payton’s testimony implicating Harris conflicted
confronted with the risk of representing conflicting interests     with the testimony of another prosecution witness. The
and could not, therefore, provide effective assistance for each    district court noted that Evans not only failed to cross-
client.” Id. at 476-77.                                            examine Payton, he also failed to object to a number of
                                                                   clearly objectionable questions posed by the prosecutor. The
   In cases where neither the defendant nor defense counsel        district court credited Evans’ testimony at the evidentiary
makes a timely objection to joint representation, prejudice is     hearing that he could not cross-examine Payton because he
presumed only if the defendant demonstrates on appeal that         feared subjecting Payton to further prosecution, harming
“an actual conflict of interest adversely affected his lawyer’s    Harris’ defense, and revealing client confidences. For the
performance.” Cuyler, 446 U.S. at 348-350; see also Riggs          reasons discussed below, although not error, it was not
v. United States, 209 F.3d 828, 831 n.1 (6th Cir. 2000)            necessary for the district court to find an actual conflict of
(“[T]his [C]ircuit applies the Cuyler analysis to all Sixth        interest before presuming prejudice.
Amendment conflict-of-interest claims. One exception, not
applicable here, is in those cases where the trial court was         On direct appeal, the Ohio Court of Appeals affirmed that
informed by counsel or the defendant of a potential conflict       a claim of ineffective assistance of counsel is governed by
of interest but failed to inquire into that conflict: in such      Strickland, and recited the required elements. The court
cases, prejudice is presumed and reversal is automatic.”)          proceeded to review the Supreme Court’s opinions in
(internal citation omitted). Cuyler generally limits a trial       Holloway and Cuyler. The court read Holloway as imposing
court’s duty to initiate a conflict of interest inquiry to those   a duty on a trial court to inquire into whether the risk of a
cases in which the trial court either “knows or reasonably         conflict of interest unconstitutionally endangered a
should know that a particular conflict exists.” 446 U.S. at        defendant’s Sixth Amendment right to counsel when counsel
346-47. The issues presented to the Cuyler Court included          represents multiple defendants at one trial. The court read
whether “a state trial judge must inquire into the propriety of    Cuyler as imposing a duty on a trial court “to inquire into the
multiple representation even though no party lodges an             possibility of conflicts of interest posed by multiple
objection,” and “whether the mere possibility of a conflict of     representation only . . . in cases where the trial judge knows
interest warrants the conclusion that the defendant was            or reasonably should know that a possible conflict of interests
deprived of his right to counsel.” Id. at 345.                     exists.” The court further noted that the Cuyler Court had
                                                                   observed that “separate trials for . . . co-defendants
  Before addressing the state court’s adjudication of Harris’      significantly reduce[s] the potential for a divergence in their
claim, we note that the district court held that Harris was        interests.”
entitled to habeas relief because (1) he was entitled to the
presumption of prejudice and automatic reversal under                 In light of this precedent, the appeals court concluded that
Holloway, and (2) he was entitled to the presumption of            “nothing in the circumstances of this case indicates that the
prejudice and automatic reversal under Cuyler due to Evans’        trial court had a duty to inquire into whether there was a
actual conflict of interest adversely effecting his                conflict of interest,” noting that Payton and Harris were tried
representation of Harris. In support of its actual conflict of     separately and that Evans’ role in representing Payton was
No. 02-3114                             Harris v. Carter      9    10    Harris v. Carter                             No. 02-3114

“all but over” because Payton had been convicted when he           The trial court cursorily rejected the request. In assessing the
testified at Harris’ trial. We read this holding as finding that   sufficiency of defense counsel’s objection to the joint
Holloway was inapplicable to this case because Harris and          representation arrangement, the Court dismissed the argument
Payton were not tried jointly and that Cuyler did not impose       that defense counsel should have presented its request for the
a duty to inquire in this case because Harris and Payton’s         appointment of separate counsel more vigorously and in
separate trials minimized the risk of conflict and Payton had      greater detail, noting that the trial court’s response
little need for Evans’ continued representation. Finally, the      discouraged the continued pursuit of the request and that a
appeals court held that even if Harris’ Sixth Amendment            more detailed presentation of the conflict of interest problem
claim was analyzed under the Cuyler actual prejudice               posed the risk of violating the lawyer’s duty of confidentiality
standard, his claim failed because Harris had not                  to his clients. Holloway, 435 U.S.. at 485.
demonstrated, and the court itself could not see, that an actual
conflict of interest had adversely effected Evans’                   We find that the grounds for Evans’ request for the
representation of Harris.                                          appointment of separate counsel should have been apparent to
                                                                   the state trial court. Evans raised his request twice,
   The state appeals court opinion does not mention Evans’         explaining that the appointment of separate counsel was
request for the appointment of separate counsel, nor does it       necessary because he could not effectively protect Payton’s
discuss the role that a timely objection or motion for the         interests during his testimony against Harris while
appointment of separate counsel plays in the analysis of a         simultaneously representing Harris’ interests, given the
Sixth Amendment claim based on counsel’s representation of         confidential communications he had with each man. Because
conflicting interests. Because the appeals court concluded         the objection raised by Evans mirrors that recognized by the
that there was no reason for the trial court to know that a        Holloway Court, we find that Evans request sufficiently
conflict of interest existed in the joint representation           informed the trial court of the basis for his objection to his
arrangement, we read the opinion as implicitly finding that        continued representation of Payton and Harris.
Evans’ request for separate counsel failed to sufficiently
inform the trial court that the joint representation arrangement      We further note that Evans’ objection was timely despite
posed a conflict of interest now that Payton was required to       the fact that Evans did not raise the conflict of interest issue
testify. The appeals court’s conclusion in this regard is          until Harris’ trial was underway. As observed in Holloway,
contrary to the Holloway Court’s holding regarding what            “an ‘attorney representing two defendants in a criminal matter
constitutes a sufficient notice to the trial court. In Holloway,   is in the best position professionally and ethically to
defense counsel was appointed to represent three defendants        determine when a conflict of interests exists or will probably
at a joint trial. Defense counsel repeatedly objected to the       develop in the course of trial,’” and “defense attorneys have
arrangement prior to trial to no avail. At trial, when each of     an obligation, upon discovering a conflict of interests, to
the defendants decided to testify against the advice of            advise the court at once of the problem.” Id. at 485-86. Thus,
counsel, defense counsel again raised an objection to the joint    a conflict of interest objection is timely not only when it is
representation on the ground that confidential                     raised before trial, but also when it is raised during the course
communications with each defendant precluded the attorney          of the trial. Id. at 495 n.4 (Powell, J., dissenting). This is
from examining one defendant while protecting the interests        particularly true where, as here, the conflict of interests did
of the other two defendants through cross-examination or           not arise until Payton received immunity and was compelled
objections to the prosecuting attorney’s cross-examination.        to testify. Because the trial court failed to investigate Evans’
No. 02-3114                              Harris v. Carter   11

timely objection, the Ohio Court of Appeals should have
presumed prejudice and automatically reversed Harris’
conviction. Its finding was contrary to clearly established
federal law as stated in Holloway.
                       III. Conclusion
   For the foregoing reasons, we AFFIRM the district court’s
grant of Harris’ petition for habeas relief on the ground that
the decision of the Ohio Court of Appeals is contrary to
Holloway. Harris was presumptively denied his Sixth
Amendment right to counsel when the state trial court failed
to inquire as to whether Evans had a conflict of interest after
being so informed, and therefore is entitled to automatic
reversal of his conviction.
