                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 20, 2009
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                    Clerk of Court




    GLEN DALE HAMMON,

               Petitioner-Appellant,

    v.                                                  No. 08-6151
                                                (D.C. No. 5:04-CV-01007-HE)
    DAVID MILLER,                                       (W.D. Okla.)

               Respondent-Appellee.


                           ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and
GORSUCH, Circuit Judge.



         We consider Glen Dale Hammon’s claim that his appellate counsel was

ineffective for failing to assert on direct appeal that trial counsel labored under a

conflict of interest. After holding an evidentiary hearing, the district court

concluded appellate counsel was not ineffective and therefore denied habeas relief



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
under 28 U.S.C. § 2254. Exercising jurisdiction under 28 U.S.C. §§ 1291 and

2253, we affirm.

                                           I.

      Because the underlying facts and procedural history are mostly set forth in

our prior decision, Hammon v. Ward, 466 F.3d 919 (10th Cir. 2006), we recount

them in summary fashion.

      A police officer initiated a traffic stop of the car driven by Glen. 1

Demarcus was a passenger. While performing an inventory search of the car,

which was owned by Glen’s girlfriend, officers found a bag containing thirteen or

fourteen crack cocaine rocks and a loaded handgun with a mutilated serial number

on the passenger side of the vehicle. Glen and Demarcus were arrested. On the

day of the traffic stop and his arrest, Demarcus told the police the gun was his

and Glen passed the drugs to him and requested he hide them.

      Eddie Jackson was retained to represent both brothers. He negotiated a

plea bargain for Demarcus, who had no prior criminal history. Demarcus pled

guilty to possession of a controlled dangerous substance and possession of a

firearm with a mutilated serial number. He received a five-year deferred

sentence. Demarcus was required, as part of his plea agreement, to stand by his




1
       Because this case involves two brothers, Glen and Demarcus Hammon, we
refer to them by first name only.

                                          -2-
prior statements implicating Glen. In the factual basis for his plea Demarcus said

the drugs also belonged to Glen.

      Glen, who had previously been convicted of second-degree murder and

discharge of a firearm from a moving vehicle, rejected a plea offer of fifteen

years’ imprisonment. Instead, he proceeded to trial and was convicted of

possession of a controlled dangerous substance, possession of a firearm by a

convicted felon, and possession of a firearm with a mutilated serial number. He

was sentenced, in accordance with the jury’s recommendation, to twenty, fifty,

and twenty years’ imprisonment respectively. The first two sentences were to be

served consecutively and the third concurrently with the first two.

      Andreas Pitsiri represented Glen on direct appeal. The Oklahoma Court of

Criminal Appeals (OCCA) affirmed the convictions, rejecting an insufficiency of

the evidence argument. The OCCA also affirmed the state district court’s denial

of post-conviction relief on Glen’s pro se claim of ineffectiveness of appellate

counsel (for failing to raise trial counsel’s alleged conflict of interest).

      The federal district court denied Glen’s pro se 28 U.S.C. § 2254 petition for

a writ of habeas corpus, rejecting his ineffective-assistance-of-appellate-counsel

claim. On appeal, we appointed counsel for Glen and ultimately remanded for an

evidentiary hearing to determine whether trial counsel’s joint representation of

Glen and Demarcus adversely affected Glen because counsel’s conflict of interest




                                           -3-
prevented Demarcus from testifying that he, alone, possessed the gun and both of

them were unaware of the crack cocaine found in the car.

      On remand the district court held an evidentiary hearing in which Glen,

Demarcus, Pitsiri, and Jackson testified. After post-hearing briefing, the

magistrate judge, in a thorough and well-reasoned report and recommendation,

concluded Pitsiri was not ineffective because (1) he made a reasoned, strategic

decision, after investigation and research, not to present an ineffectiveness of trial

counsel claim and (2) as there was no actual conflict of interest, Glen suffered no

prejudice.

      In reaching his conclusion, the magistrate judge considered each of the

conflict-of-interest allegations we identified in Hammon, 466 F.3d at 929-30, to

wit: (1) the initial defense strategy, prior to Demarcus’s plea agreement, was for

Demarcus to admit possession of the gun and both brothers to deny knowledge of

the drugs; (2) Jackson negotiated a plea agreement for Demarcus in which the

State agreed to a five-year deferred sentence only if Demarcus inculpated Glen;

(3) because Jackson never informed Glen that Demarcus pleaded guilty, Glen

rejected a plea offer of fifteen years’ imprisonment and instead went to trial; and

(4) Jackson finally informed Glen during trial that Demarcus had pleaded guilty

and would not be a defense witness because he would receive prison time if he

reneged on his inculpation of Glen.




                                          -4-
      The magistrate judge, however, determined the facts were not entirely

consistent with Glen’s allegations. Specifically, the magistrate judge found:

(1) Jackson was initially retained through the preliminary hearing on the

presumption that both brothers would plead guilty; (2) Jackson credibly testified

that the initial strategy (Demarcus possessed the gun and neither brother was

aware of crack cocaine in the car) could have been devised before he received a

copy of Demarcus’s statement to the police saying Glen handed him the drugs to

hide at the time of the traffic stop; (3) Jackson’s strategy never involved

Demarcus testifying at Glen’s trial because any helpful testimony concerning the

gun would have been outweighed by damaging testimony concerning the drugs;

(4) in order to obtain a five-year deferred sentence the State only required

Demarcus to make a statement consistent with those he previously made to the

police; (5) Glen learned of Demarcus’s plea agreement several months prior to

trial, and Jackson told Glen two weeks before trial that Demarcus would not be a

defense witness; (6) Glen turned down the plea bargain offered to him because he

wanted the same plea deal Demarcus received or at least a sentence more

favorable than fifteen years; and (7) Glen was not credible in his testimony that at

the time of trial he believed Demarcus would be a defense witness.

      Based on these factual findings, the magistrate judge concluded that

Jackson was not forced to make choices advancing Demarcus’s interests over

Glen’s interests because the statement Demarcus made in his plea summary was

                                          -5-
no more inculpatory than the statement he had previously given to police. Also,

the magistrate judge determined: (1) calling Demarcus as a defense witness was

never part of the trial strategy because Demarcus’s testimony would have been

“fatal” on the drug charge and his impeachment on the drug charge would

potentially harm his exculpatory testimony concerning the gun; (2) Jackson’s trial

strategy (not call Demarcus and instead try, in other ways, to create reasonable

doubt as to whether Glen possessed the gun or the drugs) was sound and not the

result of a conflict of interest or competing loyalties; and (3) nothing in the trial

record Pitsiri reviewed would cause a reasonable appellate attorney to believe

Jackson was forced to make choices advancing the interests of Demarcus at the

expense of Glen. In reaching this latter conclusion, the magistrate judge noted

that Demarcus had made both exculpatory and inculpatory statements concerning

Glen before entering into the plea agreement, thereby making it difficult for

Demarcus to take a different position at trial.

      The magistrate judge also found Jackson was aware of the potential conflict

of interest and had discussed it with Glen, Demarcus, colleagues, and the

Oklahoma Bar Association. He decided that at most a potential conflict was

presented, but the potential conflict did not ripen because the State decided not to

offer at trial the summary of facts from Demarcus’s plea agreement.

      Accordingly, the magistrate judge determined that Pitsiri was not

ineffective for failing to raise a claim of ineffective assistance of trial counsel.

                                           -6-
Jackson had a strong strategic reason not to call Demarcus as a defense witness

and there was no reasonable probability that raising the conflict issue on appeal

would have produced a different result.

      After considering Glen’s objections to the magistrate judge’s report and

recommendation, the district court adopted the report and recommendation and

denied habeas relief. This appeal followed.

                                          II.

      Here Glen repeats his ineffective assistance of appellate counsel arguments.

According to Glen, Jackson sacrificed his interests for those of Demarcus because

procuring the best possible plea bargain for Demarcus conflicted with his best

possible defense of presenting exculpatory evidence through Demarcus.

      Typically, we review a habeas claim under the deferential review standards

set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (ADEPA).

See 28 U.S.C. § 2254(d). But we do not apply AEDPA’s deferential standards

“when a federal district court holds an evidentiary hearing and considers new

evidence that was not before the state court at the time it reached its decision,

even if the state court resolved the claim on the merits.” Young v. Sirmons,

486 F.3d 655, 663 (10th Cir. 2007); see also Hammon, 466 F.3d at 928 n.9.

Accordingly, we review the district court’s findings of fact for clear error

“and its legal conclusions de novo.” Valdez v. Ward, 219 F.3d 1222, 1230

(10th Cir. 2000).

                                          -7-
      In evaluating a claim of ineffective assistance of appellate counsel, we

follow Strickland v. Washington, 466 U.S. 668, 687-91, 694 (1984). Strickland

requires Glen to show Pitsiri’s failure to raise the conflict-of-interest issue was

objectively unreasonable and there was a reasonable probability Glen would have

prevailed on appeal if Pitsiri had raised the conflict issue. See Smith v. Robbins,

528 U.S. 259, 285 (2000). In evaluating appellate counsel’s performance, we

consider the merits of the omitted issue:

      “If the omitted issue is so plainly meritorious that it would have been
      unreasonable to winnow it out even from an otherwise strong appeal,
      its omission may directly establish deficient performance.” On the
      other hand, “if the omitted issue has merit but is not so compelling,
      we must assess the issue relative to the rest of the appeal, and
      deferential consideration must be given to any professional judgment
      involved in its omission; of course, if the issue is meritless, its
      omission will not constitute deficient performance.”

Miller v. Mullin, 354 F.3d 1288, 1298 (10th Cir. 2004) (per curiam) (quoting

Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (citation and alteration

omitted)).

      Applying these standards, we consider whether Jackson’s representation

“was constitutionally ineffective because of a conflict of interest.” Hammon,

466 F.3d at 928; see Wallace v. Ward, 191 F.3d 1235, 1245 (10th Cir. 1999)

(“Effective assistance of counsel includes the right to representation that is free

from conflicts of interest.”). Glen must demonstrate an actual conflict of interest

that adversely affected Jackson’s performance; it is insufficient for him to show


                                            -8-
“a mere theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171

(2002); see also Cuyler v. Sullivan, 446 U.S. 335, 350 (1980) (mere possibility of

conflict of interest “is insufficient to impugn a criminal conviction”). “An actual

conflict of interest exists only if counsel was forced to make choices advancing

interests to the detriment of his client.” Workman v. Mullin, 342 F.3d 1100, 1107

(10th Cir. 2003) (quotation marks and ellipsis omitted); see also United States v.

Bowie, 892 F.2d 1494, 1500 (10th Cir. 1990) (“[D]efense counsel’s performance

[i]s adversely affected by an actual conflict of interest if a specific and seemingly

valid or genuine alternative strategy or tactic was available to defense counsel,

but it was inherently in conflict with his duties to others.”).

      Under the circumstances presented here, we cannot overturn the district

court’s decision. Jackson was fully aware of his duty of loyalty and the potential

for a conflict of interest. He testified at the evidentiary hearing that he never

planned to call Demarcus as a defense witness because (1) Demarcus had

inculpated Glen regarding the drugs in his earlier statement; (2) Demarcus would

not be a credible witness; and (3) if the State impeached Demarcus with his prior

statement, the jury could not believe the exculpatory testimony regarding the gun.

Instead, Jackson’s strategy, in relevant part, focused on Glen’s lack of knowledge

of either the gun or the drugs, and was supported by the (somewhat weak)

testimony of his mother.




                                           -9-
      Demarcus consistently said he, alone, possessed the gun. Demarcus was

clearly Glen’s best witness on the gun issues. Had Demarcus testified, it is

possible the jury would have acquitted Glen on the gun charges. But that mere

possibility reduces to speculation in light of the State’s evidence and argument

that drug dealers work as a team, with one person driving the car, acting as

security, and typically having access to the gun, while the other sells the drugs

and handles the money. It is undisputed that Glen drove the car, the loaded

handgun was under the passenger seat, the drugs were in the glove box area in

front of Demarcus, and Demarcus had a large amount of money in twenty dollar

bills on his person.

      However, had Demarcus testified, Jackson could not limit his testimony to

the gun issues. He would have been subject to cross examination about the drugs

and would have to account for his statements to the police implicating Glen (at

the time of the traffic stop Glen gave Demarcus the drugs to hide). His

accounting would be further complicated by other trial evidence. A testifying

police officer observed the brothers moving their hands while they were in the car

during the traffic stop. Thus, as Jackson testified, it came down to trial strategy –

calling Demarcus relative to the gun charges would, in his judgment, have been

outweighed by the resulting damage on the drug charge. Moreover, Jackson had

no way to know the gun charges would result in the highest sentence.




                                         -10-
      Demarcus’s plea agreement did not require him to inculpate Glen beyond

the prior inculpatory statement he made before Jackson was retained. In light of

that statement, Jackson’s negotiation of the plea agreement for Demarcus did not

conflict with any alternative or best strategy for Glen. And the plea agreement

did not prevent Jackson from making a conflict-free decision on whether to call

Demarcus as a trial witness. Indeed, even if separate attorneys had represented

Glen and Demarcus, Glen’s attorney would have to deal with Demarcus’s

statement inculpating Glen with respect to the drugs. Thus, the omitted conflict

issue was not “so plainly meritorious” such that Pitsiri should have raised the

issue on direct appeal. Miller, 354 F.3d at 1298 (quotation omitted); see also

Jones v. Barnes, 463 U.S. 745, 751 (1983) (declining to require appellate counsel

to raise all nonfrivolous issues).

      We presume Pitsiri reached the same conclusion; he was aware of and

evaluated the issue. His file contained (1) letters from Glen hinting at a potential

conflict of interest and (2) his notation that the conflict issue was meritless. The

notation also said the basis for Demarcus’s guilty plea was not brought out at trial

and the plea contained both exculpatory language (Glen did not own the gun) and

inculpatory language (both brothers possessed the drugs). Pitsiri testified he had

reviewed the entire record, presumably including Jackson’s mention of a potential

conflict of interest at a bench conference during the trial. See Thornburg v.

Mullin, 422 F.3d 1113, 1142 (10th Cir. 2005) (“Appellate attorneys work from a

                                         -11-
trial record[.]”). And Pitsiri testified to his standard practice of reviewing the

Information, which included an affidavit of probable cause noting Demarcus’s

statements (the gun was his and Glen gave him the cocaine to hide when they

were stopped).

      Pitsiri, however, did not specifically remember why he chose not to raise

the conflict issue on direct appeal or why he considered the issue meritless. In

spite of his faulty memory in that regard, he was certain he had rejected the issue

as meritless after researching the issue. “[G]iven the strong presumption of

reasonable professional assistance and the accompanying evidentiary burden

imposed on [Glen], . . . it is [Glen] who must bear the brunt of [Pitsiri’s] faulty

memory and his ambiguous testimony.” Sallahdin v. Mullin, 380 F.3d 1242, 1251

(10th Cir. 2004). Under the circumstances, we presume Pitsiri’s “performance

was reasonable and that [he] made all significant decisions in the exercise of

reasonable professional judgment.” Id. at 1252. We will not engage in hindsight

in assessing counsel’s performance. See Strickland, 466 U.S. at 689 (“A fair

assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.”).

      Under the facts of this case, we conclude Pitsiri was not objectively

unreasonable in failing to assert ineffective assistance of trial counsel. See

                                          -12-
Miller, 354 F.3d at 1299. And there is not a reasonable probability Glen would

have prevailed if the conflict issue had been raised on direct appeal. See Smith,

528 U.S. at 285.

      AFFIRMED.

                                                    Entered for the Court



                                                    Terrence L. O’Brien
                                                    Circuit Judge




                                        -13-
