                            AMENDED OPINION

                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-6652


TERRENCE LOWELL HYMAN,

                  Petitioner – Appellee,

           v.

ALVIN W. KELLER, JR.,

                  Respondent – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:08-hc-02066-BO)


Argued:   May 13, 2011                        Decided:     July 21, 2011

                Amended Opinion Filed:   August 10, 2011


Before WILKINSON, KING, and AGEE, Circuit Judges.


Appeal stayed by unpublished per curiam opinion.


ARGUED: Mary Carla Hollis, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellant.        Nicholas Collins
Woomer-Deters, NORTH CAROLINA PRISONER LEGAL SERVICES, INC.,
Raleigh, North Carolina, for Appellee.    ON BRIEF: Roy Cooper,
Attorney General of North Carolina, Raleigh, North Carolina, for
Appellant. Paul M. Green, Durham, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

              In    September       2003,     petitioner       Terrence     Hyman     was

convicted      in     the    Superior       Court    of      Bertie    County,      North

Carolina, for the murder of Ernest Lee Bennett, Jr; he was then

sentenced      to     life     in    prison       without     parole.         Following

unsuccessful direct appeals in the North Carolina courts, Hyman

sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in

the   Eastern       District   of    North       Carolina.      The    district     court

awarded habeas relief to Hyman, ruling that he had been denied

his Sixth Amendment right to counsel, due to his trial lawyer’s

conflict as a potential exculpatory witness (the “exculpatory

witness component” of Hyman’s Sixth Amendment claim).                         See Hyman

v.    Beck,    No.     5:08-hc-02066        (E.D.N.C.        Mar.     31,   2010)   (the

“District Court Order”). 1

              This appeal is pursued by respondent Alvin W. Keller,

Jr., who serves as Secretary of North Carolina’s Department of

Correction (the “State”).              The State asserts that the district

court erred by ruling that the exculpatory witness component had

been exhausted in the state courts and in awarding habeas relief

on the merits thereof.              As explained below, because the North

Carolina courts have never explicitly resolved the exculpatory

      1
        The District Court Order is found at J.A. 456-71.
(Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)



                                             3
witness component, on either procedural or substantive grounds,

the interests of federalism and comity compel us to stay this

appeal pending further state court proceedings.



                                      I.

                                      A.

             At his murder trial, Hyman was represented by lawyers

Teresa Smallwood and W. Hackney High; this appeal implicates

Smallwood’s failure to withdraw from her representation of Hyman

and testify on his behalf.            Smallwood had interviewed a key

witness against Hyman, Derrick Speller, in her investigation of

Hyman’s defense, and she had also briefly represented Speller in

a probation violation hearing.              Smallwood’s interactions with

Speller posed two separate conflicts underlying Hyman’s Sixth

Amendment claim — a “dual representation conflict,” plus the

“exculpatory    witness   conflict”       before   us   on   appeal.     As   the

Court of Appeals of North Carolina concluded on direct review,

the   dual    representation    conflict      emanated       from   Smallwood’s

representation    of   both   Hyman   and    Speller.        By   contrast,   the

exculpatory witness conflict arose because Speller admitted to

Smallwood, long before Hyman’s trial, that he had seen a man

named Demetrius Jordan shoot and kill Bennett.

             In his first state court appeal (“Hyman I”), Hyman

asserted his Sixth Amendment claim and discussed both conflict

                                      4
of interest issues.          Nevertheless, the Court of Appeals of North

Carolina      addressed        only    the       dual        representation        conflict,

remanding the matter for a hearing.                     On remand, the trial court

concluded     that     Smallwood’s       representation              of    both    Hyman   and

Speller    had      not    adversely     affected        Hyman’s          defense.      Hyman

challenged that ruling before the state court of appeals (“Hyman

II”),   but    the     trial    court’s      judgment          was    affirmed.          Hyman

thereafter petitioned for certiorari in the Supreme Court of

North     Carolina,       seeking      to    have       that     court       consider      the

exculpatory      witness       component      of    his       Sixth       Amendment     claim.

Certiorari       was      denied,       however,         on     December          22,    2008.

Accordingly,        the    North      Carolina     courts        have      never     directly

confronted the exculpatory witness conflict.



                                             1.

              The    prosecution’s       theory         at    Hyman’s       September      2003

trial was that, on May 5, 2001, Bennett was shot and killed by

Hyman in a bar fight at the L & Q Social Club, a nightclub in

Bertie County.            Speller testified at trial that he saw Hyman

enter the club with a handgun and shoot Bennett, who was seeking

to flee.       Speller said that he then saw Hyman shoot Bennett

again outside the club.               Demetrius Jordan was also outside the

club, according to Speller, but he only fired gunshots into the

air.

                                             5
            When     the     prosecutor      asked      Speller     whether    he    had

discussed the case with anyone else, Speller acknowledged that

he had spoken to “Teresa” — a reference to Teresa Smallwood, the

lawyer then representing Hyman.                  See J.A. 62.       On November 20,

2001, Smallwood interviewed Speller, who implicated Jordan and

fully   exculpated         Hyman.     A    year     later,     in   2002,     Smallwood

briefly represented Speller in a probation violation hearing.

            At Hyman’s trial in 2003, the details of the November

2001 interview were prominently featured in Smallwood’s cross-

examination of Speller, as Smallwood sought to establish that

Speller had previously identified Jordan as the killer, but had

later altered his story because he was afraid of Jordan.                              For

example, Smallwood asked Speller whether he had previously told

her that Jordan (rather than Hyman) had actually shot Bennett.

After     Speller        disclaimed    any       such   conversation,         Smallwood

inquired whether Speller had admitted to her that Jordan would

“off him [Speller] in a minute.”                 J.A. 68.      Speller also denied

that statement.

            Speller instead asserted at trial that, after his 2002

probation    violation          hearing,   he     talked   with     Smallwood       about

Hyman’s    case     in    the    parking   lot     of   her    office.       Speller’s

account was that he told Smallwood that his evidence “would harm

[Hyman] more than [it] could help him.”                       J.A. 72.      Faced with

Speller’s intransigence, Smallwood requested the trial court to

                                             6
allow her to confront Speller with the notes she made of the

November   2001    interview.      This   was   Smallwood’s   only   request

regarding her notes, and it was denied.

           Other than Speller, the only witness implicating Hyman

in   Bennett’s    murder   was   Robert   Wilson,   another   club   patron.

Smallwood and her co-counsel called two exculpatory eyewitnesses

in their defense of Hyman.        First, Demetrius Pugh testified that

he saw Demetrius Jordan shoot Bennett three times, twice while

Bennett was fleeing from the club and a third time after Bennett

had exited.       As Bennett lay on the ground outside the club,

Jordan obtained another handgun and shot Bennett the third time.

Pugh said that, although he saw Hyman at the club, he never saw

Hyman with a firearm.       Pugh further testified that when Bennett

was shot, Hyman had already left the club.

           Thereafter,     Hyman’s   lawyers     called   Lloyd   Pugh,   the

nightclub’s owner (who was unrelated to Demetrius Pugh).              Lloyd

Pugh testified to breaking up a fight between Telly Swain — once

a co-defendant of Hyman — and Swain’s brother.             While doing so,

Lloyd Pugh saw Hyman leave the club.            Although Lloyd Pugh later

heard gunshots outside the club, Hyman was by then back inside.

           On September 12, 2003, Hyman was found guilty by the

jury of the offense of first-degree murder.               On September 16,

2003, the jury recommended a sentence of life without parole,



                                      7
which the court dutifully imposed.              Hyman’s state court appeal

proceedings then ensued.



                                       2.

                                       a.

              In the Hyman I appeal, Hyman sought relief from his

conviction     and   sentence    in    the    Court    of   Appeals   of    North

Carolina.      He initially presented ten assignments of error, two

of    which   (Assignments   9   and    10)   are     relevant   to   his   Sixth

Amendment claim. 2    Assignment of Error 9 specified the following:

       The trial court erred in failing to conduct a voir
       dire when it became aware of a conflict of interest on
       the part of one of the Defendant’s attorneys, who had
       previously represented Derrick Speller, one of the
       State’s witnesses.

J.A. 248.     Assignment 10 stated:

       Defendant was denied the assistance of counsel because
       his attorney failed to withdraw from representation
       when it became apparent that she had a conflict of
       interest.

Id.

       2
       Although the North Carolina Rules of Appellate Procedure
have been amended so that a party is no longer required to set
out assignments of error, see N.C. R. App. P. 10 (2010), the
amended Rules did not become effective until 2009. When Hyman’s
notice of appeal was filed in 2003, the applicable Rules,
including Rule 10, required “[p]roposed issues that the
appellant intends to present on appeal [to] be stated without
argument at the conclusion of the record on appeal in a numbered
list.” Assignments of Error 9 and 10 were on the Rule 10 list
in Hyman I.



                                        8
              In   his   appellate        brief          in   Hyman      I,    Hyman      combined

Assignments of Error 9 and 10 for briefing purposes.                                  Addressing

the    dual    representation         conflict,           Hyman    explained         that    “[a]n

actual      conflict     of     interest            exists       where        defense     counsel

represents both the defendant and a State’s witness, even if

that    representation         is    in   an    unrelated          matter.”           J.A.    268.

Hyman maintained         that       the   trial          court    had    erred      when,    after

being made aware of the dual representation conflict, it failed

to conduct an appropriate hearing to render Hyman fully advised

of    the   conflict     and    give      him       an    opportunity         to    express   his

views.

              Hyman’s appellate brief in Hyman I further asserted,

in an argument geared to the exculpatory witness conflict, that

“[d]efense counsel Smallwood had a conflict of interest in that

she was in possession of information which could be used to

impeach       Derrick    Speller,         one       of     the    State’s          most   crucial

witnesses.”        J.A. 269.        The brief explained this point further:

       Although [Smallwood] chose to remain as counsel and
       used    the   information   she   acquired    in   her
       representation of Speller to impeach his testimony,
       rather than withdrawing as counsel and testifying as a
       witness, it is not at all clear that this was the
       correct decision.   It is certainly arguable that the
       information she had to impart would have carried more
       weight had she been on the stand testifying under
       oath.

Id.



                                                9
             Hyman’s     primary       authority        for   his    Sixth     Amendment

claim was State v. Green, 500 S.E.2d 452 (N.C. Ct. App. 1998),

in which the Court of Appeals of North Carolina relied heavily

on its earlier decision in State v. James, 433 S.E.2d 755 (N.C.

Ct.   App.    1993).       In     James,          the   defendant’s     attorney        was

simultaneously representing a prosecution witness on unrelated

criminal charges.         The James court recognized a Sixth Amendment

conflict     of   interest      issue    and       invoked    the    Supreme      Court’s

precedent in Cuyler v. Sullivan, 446 U.S. 335 (1980).                             When a

Sixth Amendment ineffective assistance claim is premised on an

actual conflict of interest, Cuyler requires a showing that (1)

petitioner’s lawyer operated under a “conflict of interest” and

(2) such conflict “adversely affected his lawyer’s performance.”

446 U.S. at 348.        Applying Cuyler in James, the Court of Appeals

of North Carolina recognized that the “representation of the

defendant as well as a prosecution witness (albeit in another

matter)    creates      several    avenues         of   possible    conflict      for    an

attorney.”        433 S.E.2d at 758.              And, the court concluded that

the James lawyer “did actively represent conflicting interests

and this adversely affected defendant herein.”                      Id. (explaining,

inter alia, that “the overlap of representation prior to and at

the    time        of      trial        of         both       parties        by    [the]

attorney . . . resulted           in     an       unavoidable       conflict      as     to

confidential communications, and affected counsel's ability to

                                             10
effectively           impeach     the    credibility       of   [the     prosecution]

witness . . . , thus compromising defendant’s representation”).

Finally, the court instructed that,

       in a situation of this sort, the practice should be
       that the trial judge inquire into an attorney’s
       multiple representation once made aware of this fact.
       If the possibility of conflict is raised before the
       conclusion of trial, the trial court must take control
       of the situation.    A hearing should be conducted to
       determine whether there exists such a conflict of
       interest that the defendant will be prevented from
       receiving advice and assistance sufficient to afford
       him the quality of representation guaranteed by the
       sixth amendment.

Id. (internal quotation marks omitted).                     The court deemed “the

failure of the trial judge to conduct an inquiry” in James to be

reversible error “in and of itself.”                Id. at 759.

                Thereafter, in Green, the court of appeals assessed a

situation        where    a   defense    lawyer    “had    to   decide       whether    to

pursue      a    line    of     impeachment    questioning      with    a     particular

witness”        and     his   choice    “could     have    required     the    attorney

himself to testify and thus could have created the possibility

that the attorney would have to withdraw from the case.”                               500

S.E.2d at 460.           The trial judge in Green readily recognized the

lawyer’s conflict and questioned the defendant to confirm that

he understood the conflict and why his lawyer was abandoning a

line   of       impeachment       questioning.       Proceeding       carefully,       the

trial court appointed separate counsel to inform and advise the

defendant        on     the   conflict    issue.          Although     the    defendant

                                              11
ultimately waived his right to conflict-free counsel, he later

pursued      a    Sixth   Amendment    ineffective       assistance    claim    on

appeal.      The court of appeals recognized that a defense lawyer

who decides not to pursue a trial strategy that may require him

to    testify     thereby     jeopardizes    his   client’s   Sixth     Amendment

right to conflict-free counsel.              Id.    Nevertheless, the court

concluded        that   the   Green   defendant    had    plainly     waived   the

conflict during trial, and it thus declined to award any relief.

Id.



                                        b.

              In its Hyman I decision of August 2, 2005, the Court

of Appeals of North Carolina recognized that Smallwood had a

conflict of interest that arose from her dual representation of

both Hyman and Speller, and it remanded for the trial court to

conduct an evidentiary hearing on whether Hyman’s defense had

been adversely affected thereby.              See State v. Hyman, No. 04-

1058 (N.C. Ct. App. Aug. 2, 2005) (the “Hyman I Opinion”). 3                   The

court of appeals recited that, under Cuyler, a defendant who

fails to timely object to a conflict of interest on the part of

his lawyer must show that the conflict adversely affected the

lawyer’s trial performance.           See 446 U.S. at 348.          The court of

       3
           The Hyman I Opinion is found at J.A. 107-13.



                                        12
appeals emphasized that, even absent an objection, when a trial

court      becomes     aware     of     a    lawyer’s        potential     conflict      of

interest, it is obliged to conduct an appropriate hearing.                              See

James, 433 S.E.2d at 758.              Based on that precedent, the court of

appeals       observed        that,     “[l]ike       the      attorney     in    James,

[Smallwood] had also previously represented a witness for the

State    on    an    unrelated      charge.”         Hyman    I   Opinion   5.     Thus,

according to the court of appeals, the trial court erred by

failing       to    comply     with    the    hearing        requirement     of   James.

Nonetheless, the court of appeals was not convinced that Hyman

was entitled to relief, explaining:

      Despite finding error in this case, we cannot find
      from   the   face of   the  record  that   defendant’s
      attorney’s prior representation of Speller affected
      her representation of defendant.    As a result, we
      remand for an evidentiary hearing to determine if the
      actual conflict adversely affected the attorney’s
      performance.

Id.   at    5-6.       In    sum,     the    court    of    appeals   concluded        that

Smallwood had a conflict of interest when she defended Hyman at

trial,     but      only    because    she    had    represented      Speller     in    the

probation violation hearing.                 The court did not acknowledge the

exculpatory witness conflict.



                                             3.

              On November 2, 2005, the trial court conducted the

hearing directed by the court of appeals in Hyman I.                              At the

                                             13
outset of the hearing, the prosecution set forth its view to the

trial court that the court of appeals had

       basically order[ed] that the trial judge make a
       finding or do an inquiry as to whether or not Ms.
       Smallwood,   who   is    present    and  represented the
       defendant at trial, whether there was conflict of her
       prior representation of Derrick Speller, who was a
       State’s witness in this case, whether there was a
       conflict   and   whether    it   adversely  affected her
       representation of Mr. Hyman.

J.A.       117-18.        The    court     accepted    the      prosecution’s

characterization of the scope of the Hyman I remand hearing, and

thus addressed and disposed of the dual representation conflict

issue only. 4        The sole witness at the hearing was Smallwood

herself.      She explained that her representation of Speller in

the    probation     violation   hearing   occurred   on   a   single   day   in

2002, more than a year before the Hyman trial.                  According to


       4
       Hyman appeared at the remand hearing with attorney Jackson
Warmack, who had represented former co-defendant Telly Swain
throughout the original murder proceedings.    The court enlisted
Warmack’s assistance after it “discussed this matter with the
prosecution” and “decided in the best interest of all that Mr.
Hyman have a new attorney appointed to represent him.”       J.A.
115-16. Notwithstanding his prior involvement adverse to Hyman,
Warmack agreed to the appointment, explaining that he “contacted
the State bar and determined there would be no conflict there.”
Id. at 116.   Warmack then represented to the court that he met
with Hyman and “explained the situation and told him that if he
had any problems with it this would be the time.”             Id.
Following these representations, the court asked Hyman whether
he had any objection to being represented by Warmack, and Hyman
responded in the negative. See id.




                                      14
Smallwood, she represented Speller for only five to ten minutes,

during which there was no discussion of Hyman or the Bennett

shooting.      Smallwood     also    asserted     (incorrectly)        that   her

representation    of       Speller     did      not    overlap        with    her

representation of Hyman and that she was not even sure whether

Hyman had been charged with Bennett’s murder at the point she

represented    Speller.        Smallwood      maintained       that    she    had

discussions    with    Speller      about    Hyman’s       defense    after   her

representation   of    Speller      concluded.        On    cross-examination,

Smallwood was asked whether she had any records regarding her

representation of Speller.           She replied that she did not, but

that “[m]ore likely than not I was operating from my hip, which

is what I have done for twenty years.”           J.A. 128.

            After Smallwood’s testimony, the trial court located

its records regarding Smallwood’s representation of Speller and

Hyman.   Those records revealed that Smallwood had appeared in

Speller’s probation violation hearing on September 26, 2002, and

that Smallwood had actually been appointed to represent Hyman on

the murder charge more than a year earlier, on May 14, 2001.                   At

the conclusion of the remand hearing, the court ruled from the

bench that

     [a]t this time I’m going to find and order that there
     was    nothing   about   Ms.   Smallwood’s   previous
     representation of Mr. Derrick Speller, a witness in
     this case, that adversely affected her performance or


                                      15
      her representation of Mr. Terrence Hyman in the trial
      of his case.

J.A. 133.

             On November 28, 2005, the trial court issued an order

consistent with its oral ruling.              See State v. Hyman, 01-CRS-

50423 (N.C. Sup. Ct. Nov. 28, 2005) (the “Remand Ruling”). 5                 The

Remand Ruling addressed only the dual representation conflict

and explained that

      [t]his matter comes . . . pursuant to an opinion of
      the North Carolina Court of Appeals . . . remanding
      the case to this Court to conduct an evidentiary
      hearing to determine if the actual conflict between
      the defendant’s trial attorney Teresa Smallwood and a
      State’s witness Derrick Speller adversely affected Ms.
      Smallwood’s performance in the representation of the
      defendant Terrence Hyman.

Id. at 1.         The Remand Ruling made several findings of fact,

including     the    finding   that,   during    her   five-   to     ten-minute

representation of Speller on September 26, 2002, Smallwood did

not obtain any information about Speller that could have been

used to impeach him.        Id. at 2.       The Remand Ruling denied relief

on    the     dual      representation       conflict,      specifying      that

“Smallwood’s representation of Terrence Hyman was not adversely

affected     by   her   previous   representation      of   Derrick    Speller.”

Id.




      5
          The Remand Ruling is found at J.A. 135-36.



                                       16
                                     4.

            After the Remand Ruling, Hyman again appealed to the

Court of Appeals of North Carolina.          In Hyman II, Hyman raised

only three assignments of error, the third being that

     [t]he trial court’s conclusion of law that defense
     counsel’s   representation   of   Defendant  was  not
     adversely affected by her prior representation of
     Derrick Speller is not supported by the trial court’s
     findings of fact or by competent evidence in the
     record, and is erroneous as a matter of law.

J.A. 341.    Hyman’s brief responded to the trial court’s findings

of fact and asserted that the court had erred in ruling on the

dual representation conflict.        Hyman’s brief argued that,

     [a]lthough Speller was cross-examined by Smallwood to
     some extent about these matters, it is apparent given
     the damaging nature of what she was told, that Ms.
     Smallwood’s cross-examination would have been more
     vigorous, and certainly more illuminating.

Id. at 356-57.      Hyman thus contended in Hyman II that the trial

court erred in concluding that he was not adversely affected by

Smallwood’s prior representation of Speller.

            On April 3, 2007, the court of appeals affirmed the

Remand Ruling as to the dual representation conflict, and it

accepted    the   trial   court’s   conclusion   that   Smallwood’s   prior

representation of Speller had not adversely affected Hyman.            See

State v. Hyman, No. 06-939 (N.C. Ct. App. Apr. 3, 2007) (the




                                     17
“Hyman II Opinion”). 6          The court of appeals characterized Hyman’s

contention thusly:         “Defendant argues the trial court erred when

it    concluded     Smallwood’s     representation              of   him   had    not    been

adversely affected by her prior representation of Speller, a

State’s      witness.”      Id.    at    3.         The    court     of    appeals      again

emphasized that “‘[t]he right to effective assistance of counsel

includes the right to representation that is free from conflicts

of interest.’”        Id. (quoting State v. Bruton, 474 S.E.2d 336,

343 (N.C. 1996)).          Nonetheless, the court of appeals explained

that,      under   State   v.     James,      the    trial       court     had    correctly

concluded that       Smallwood’s        previous      representation             of   Speller

had   not    adversely     affected     Hyman:            “As   distinct     from      James,

there was no overlap of representation prior to and at the time

of trial between Smallwood’s prior representation of Speller at

his     probation    violation      hearing         and     her      representation        of

defendant at his first degree murder trial.”                         Id. at 5 (internal

quotation marks omitted). 7             Furthermore, the court of appeals

observed:




       6
           The Hyman II Opinion is found at J.A. 137-41.
       7
        As   established            at  the   remand  hearing,  Smallwood
represented Speller at             his probation violation hearing on
September 26, 2002.   She           had by then already been representing
Hyman since May 2001.              Hyman’s trial did not commence until
September 2003.



                                           18
        No   evidence    was   shown that   Smallwood’s   prior
        representation of Speller affected her ability to
        effectively    impeach   the credibility   of   witness
        Speller.    The record on appeal contains no evidence
        that Smallwood obtained any information about either
        Speller or defendant during her representation of
        defendant that Smallwood could have used to impeach
        Speller during trial.

Id. (internal quotation marks omitted).                       Again, as in Hyman I,

the court did not acknowledge the exculpatory witness conflict.



                                           5.

             Thereafter,     on    May     31,       2008,     Hyman    petitioned      for

certiorari    in     the   Supreme   Court       of     North    Carolina.         In   his

petition, Hyman presented only one contention, specifying that

his

      Sixth Amendment right to the effective assistance of
      conflict-free counsel was violated by defense attorney
      Smallwood’s position as a witness to a highly material
      prior inconsistent statement by a key state’s witness
      (her former client), directly contradicting his trial
      testimony and exonerating petitioner of this crime.

J.A. 201.      Thus, Hyman refined his Sixth Amendment claim to

encompass     only     the   exculpatory             witness     component,       and   he

underscored        that    the    court         of     appeals         “didn’t     mention

Smallwood’s conflicted position as a witness to Speller’s highly

material inconsistent prior statement.”                      Id. at 200.         According

to Hyman, his Sixth Amendment right to counsel had been abridged

in that “it is part of clearly established federal law that a

Sixth    Amendment     violation     may    arise       not     only    from     conflicts

                                           19
between    the     interests      of    counsel’s       clients,    but     also   from

conflicts    between       the   client’s       and    counsel’s   own    interests.”

Id.   at    202.       Hyman      maintained          that    Smallwood’s      conflict

adversely affected him in that “it would be impossible for any

attorney to make an objective assessment of her own importance

as    a    witness,        independent      of     personal       and     professional

considerations      arising      from    her     likely      inability    to   continue

serving as counsel.”             Id. at 208.          On December 11, 2008, the

Supreme     Court     of     North     Carolina       summarily     denied     Hyman’s

petition for certiorari.               See State v. Hyman, No. 245P08 (N.C.

Dec. 11, 2008).



                                           B.

            On May 8, 2008, Hyman turned to the federal courts,

petitioning for habeas corpus relief in the Eastern District of

North Carolina, pursuant to 28 U.S.C. § 2254. 8                         In his § 2254

petition, Hyman contended that


      8
       Hyman filed his § 2254 petition in the district court
prior to seeking certiorari in the Supreme Court of North
Carolina. As a result, on October 15, 2008, the district court
stayed Hyman’s § 2254 petition pending a ruling on the petition
for certiorari.    On January 19, 2009, after the state supreme
court denied the certiorari petition, the district court lifted
its stay.    Notably, Hyman has never sought state collateral
review of his conviction and sentence.      See N.C. Gen Stat.
§ 15A-1414 (specifying that defendant may pursue motion for
appropriate   relief   (“MAR”)  —  North   Carolina’s statutory
procedure for collateral review — within ten days of entry of
(Continued)
                                           20
     the state court unreasonably failed to recognize that
     Smallwood’s conflict arose not merely from having
     previously served as Speller’s attorney, but from
     Smallwood’s position as the only person able to
     testify that Speller made a highly inconsistent prior
     statement identifying the shooter as Demetrius Jordan,
     not Hyman.

J.A. 23.     By its Order of March 31, 2010, the district court

granted    the   writ.      The    District   Court   Order    addressed     and

disposed of two issues:            (1) whether the exculpatory witness

component of Hyman’s Sixth Amendment claim had been exhausted in

the North Carolina courts; and (2) whether Hyman was entitled to

relief under the Sixth Amendment.

            Appropriately,        the   district    court    began    with   the

exhaustion issue.        In its motion for summary judgment, the State

maintained   that   Hyman    had    failed    to   exhaust    the    exculpatory

witness component, in that he did not fairly present it to the

Court of Appeals of North Carolina.            The State pointed out that

Hyman did not proffer any evidence or examine Smallwood at the

remand hearing regarding the possibility that she could have

withdrawn and testified, nor did he argue the issue in his Hyman



criminal judgment).    But see id. § 15A-1415(b)(3) (providing
that defendant may file MAR more than ten days after entry of
judgment if “[t]he conviction was obtained in violation of the
Constitution of the United States”); State v. Goodson, 600
S.E.2d 519, No. COA03-834, 2004 WL 1920948, at *4 (N.C. Ct. App.
July 6, 2004) (unpublished table decision) (“[An MAR] based on
[Sixth Amendment] grounds may be filed any time after the
verdict is announced.”).



                                        21
II brief.       Moreover, according to the State, if Hyman were to

return to the state courts and attempt to raise the exculpatory

witness component anew, he would be procedurally barred from

doing so.      As such, the State contended, Hyman had procedurally

defaulted     the   exculpatory     witness      component      for    purposes   of

federal court review.         The district court disagreed with the

State, premised on its determination that there was no failure

to exhaust because both the Court of Appeals and the Supreme

Court    of    North    Carolina     “were       given     a   ‘full     and   fair

opportunity’     to    consider    the   substance       of    [Hyman’s]   claim.”

District Court Order 10 (quoting Larry v. Branker, 552 F.3d 356,

366 n.10 (4th Cir. 2009)).

              Turning next to the merits of Hyman’s Sixth Amendment

argument, the district court, guided by Cuyler, reasoned that

“[o]nce a petitioner shows an actual conflict adversely affected

his representation by counsel, prejudice is presumed, and he is

entitled to relief.”       District Court Order 12.             Furthermore, “if

during   pretrial      representation         counsel    becomes   a    witness   to

events at issue in the client’s case, there is a conflict with

great potential for adverse effect.”              Id. at 14 (citing Rubin v.

Gee, 292 F.3d 396, 401-02 (4th Cir. 2002)).                     Here, the court

observed, Smallwood “chose to continue as counsel” rather than

“testify herself and proffer impeaching testimony,” even though

her evidence would have corroborated the testimony of Demetrius

                                         22
Pugh that Jordan had actually murdered Bennett.                               Id. at 15.9

“Smallwood’s         actual    conflict       of    interest       [thereby]       adversely

affected       her    performance,”       and       Hyman    was     denied       his     Sixth

Amendment right to counsel.               Id.       The implicit conclusion of the

North      Carolina     courts    to    the    contrary      was,    according          to   the

district       court,    “an     objectively         unreasonable          application        of

clearly established federal law to the facts of [Hyman’s] case.”

Id. at 16.        The court therefore granted Hyman a writ of habeas

corpus.

               The    State    has      timely      appealed        from    the     district

court’s judgment granting the writ, and we possess jurisdiction

pursuant to 28 U.S.C. § 1291.



                                              II.

               We review de novo a district court’s decision to award

habeas corpus relief.             See Bauberger v. Haynes, 632 F.3d 100,

103     (4th    Cir.     2011).         Our     analysis       is    tempered        by      the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

In    accordance       with    AEDPA,    a    federal       court    may     grant      habeas

       9
       The district court recognized that Smallwood’s testimony
would have been admissible at trial to impeach Speller and prove
his prior inconsistent statement identifying Jordan as Bennett’s
murderer, since the identity of the killer was the controlling
material issue.    See Order 13-14 (citing State v. Green, 250
S.E.2d 197, 203 (N.C. 1978)); see also State v. Batchelor, 660
S.E.2d 158, 161 (N.C. Ct. App. 2008).



                                              23
corpus relief only insofar as (1) the state court adjudication

of the issue on its merits “resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

the   United     States”;        or     (2)    the    adjudication        “resulted    in    a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.”        28 U.S.C. § 2254(d).



                                              III.

            In      this     appeal,         the     State    not   only    continues       to

contest   the       merits       of    the    exculpatory       witness     component       of

Hyman’s     Sixth      Amendment             claim,     but     also      reiterates    the

contention that Hyman failed to exhaust the exculpatory witness

component      of    the     claim       in    the     North     Carolina     courts    and

procedurally defaulted federal review.                        Section 2254(b)(1)(A) of

Title 28 provides that a writ of habeas corpus shall not be

granted     unless        “the        applicant       has     exhausted     the   remedies

available    in     the    courts        of    the    State.”       Furthermore,       “[a]n

applicant shall not be deemed to have exhausted the remedies

available in the courts of the State . . . if he has the right

under the law of the State to raise, by any available procedure,

the question presented.”                 28 U.S.C. § 2254(c);              see O’Sullivan

v. Boerckel, 526 U.S. 838, 844 (1999) (“Section 2254(c) requires

                                               24
only that state prisoners give state courts a fair opportunity

to act on their claim.”).

               As we explained in Breard v. Pruett, “[a] distinct but

related   limit     on    the   scope    of    federal    habeas    review    is    the

doctrine of procedural default.”                134 F.3d 615, 619 (4th Cir.

1998).    One manner in which procedural default occurs is

     when a habeas petitioner fails to exhaust available
     state remedies and the court to which the petitioner
     would be required to present his claims in order to
     meet the exhaustion requirement would now find the
     claims procedurally barred.

Id. (internal quotation marks omitted).                  Procedural default also

occurs    “[i]f    a   state    court    clearly    and    expressly       bases    its

dismissal of a habeas petitioner’s claim on a state procedural

rule,    and    that     procedural     rule    provides    an     independent      and

adequate ground for the dismissal.”              Id.

               Notably, the Supreme Court of the United States has

recently instructed that,

     [w]hen a federal claim has been presented to a state
     court and the state court has denied relief, it may be
     presumed that the state court adjudicated the claim on
     the merits in the absence of any indication or state-
     law procedural principles to the contrary.

Harrington v. Richter, 131 S. Ct 770, 784 (2011).                          The Court

added, however, that “[t]he presumption may be overcome when

there is reason to think some other explanation for the state

court’s    decision       is    more    likely.”         Id.     (citing     Ylst   v.

Nunnemaker, 501 U.S. 797, 803 (1991)).

                                          25
            Here, the State contends that Hyman did not fairly

raise the exculpatory witness component in the North Carolina

courts and thereby “failed to exhaust his federal claim.”                           Br.

of Appellant 11.          The State further maintains that, “[b]ecause

Hyman cannot now return to state court and raise his § 2254

claim anew, it is procedurally defaulted.”                   Id.        Of course, as

heretofore      discussed,    neither     the     Court     of    Appeals     nor   the

Supreme    Court   of   North     Carolina      has    directly     confronted      the

procedural or substantive propriety of the exculpatory witness

component.      Instead, the court of appeals decisions in Hyman I

and Hyman II each focused on the dual representation conflict

issue,    and   the   state   supreme      court      summarily     denied     Hyman’s

petition for certiorari.

            Unfortunately,        the     basis       for   the     North     Carolina

courts’ lack of attention to the exculpatory witness conflict is

unclear    —    perhaps    they   did     not   consider         that   component    of

Hyman’s Sixth Amendment claim to be fairly presented, perhaps

they meant to implicitly reject it on the merits, or perhaps

they simply overlooked it.              Thus, we are uncertain whether, if

Hyman seeks to resurrect the exculpatory witness component in

the state courts, those courts will enforce a procedural bar.

            In these unusual circumstances, we are constrained to

employ the “stay and abeyance procedure” approved by the Supreme

Court in connection with unexhausted § 2254 claims.                         See Rhines

                                         26
v.    Weber,    544    U.S.   269,    275-78          (2005).      The    Rhines        Court

assessed how the lower federal courts should deal with “mixed”

habeas petitions (where certain constitutional claims have been

exhausted but others have not) in a post-AEDPA setting.                           See 544

U.S. at 269.         Prior to AEDPA’s enactment, a district court could

dismiss a mixed habeas petition without prejudice and permit the

petitioner to return to state court on the unexhausted claims.

AEDPA, however, imposed a time constraint that required a § 2254

petitioner to seek federal habeas corpus relief within a year of

a    final     adjudication     in    the    state       courts.         As     such,    the

dismissal of a mixed petition without prejudice is no longer a

feasible option for a federal court, in that the § 2254 petition

could ultimately be adjudged time-barred under AEDPA.

               In recognizing an alternative to dismissal, the Rhines

Court stressed the federalism and comity-related importance of

permitting the state courts to assess constitutional claims in

the first instance — before a federal court does so:

       “Because it would be unseemly in our dual system of
       government for a federal district court to upset a
       state court conviction without an opportunity to the
       state courts to correct a constitutional violation,
       federal courts apply the doctrine of comity.”

544   U.S.     at    274   (quoting   Rose       v.    Lundy,   455      U.S.    509,     518

(1982)); see also Elmore v. Ozmint, No. 07-14 (4th Cir. Mar. 24,

2008) (unpublished order staying appeal involving mixed § 2254

petition       “in    the     interests      of        federalism        and     comity”).

                                            27
Additionally, as the Rhines Court explained, the doctrine of

comity counsels that a federal court

     should defer action on causes properly within its
     jurisdiction until the courts of another sovereignty
     with concurrent powers, and already cognizant of the
     litigation, have had an opportunity to pass on the
     matter.

544 U.S. at 274.          With comity specifically in mind, the Court

concluded that, in the proper circumstances, a § 2254 petition

should be stayed for a reasonable time to enable the petitioner

to return to state court and pursue his arguably unexhausted

claim.    Id. at 277-78.        The Court has subsequently extended the

Rhines rationale beyond mixed § 2254 petitions.                  See Pace v.

DiGuglielmo,       544   U.S.   408,   416   (2005);   see   also     Heleva    v.

Brooks, 581 F.3d 187, 191-92 (3d Cir. 2009).

             In    its   Pace   decision,    the   Supreme    Court    pondered

whether the filing of an untimely application for State post-

conviction        or   collateral   review    tolls    the   AEDPA    time     bar

established in 28 U.S.C. § 2244(d)(2). 10             The Court ruled in the

negative, but went on to explain that

     [a] prisoner seeking state post-conviction relief
     might   avoid  this   predicament . . . by filing   a
     ‘protective’ petition in federal court and asking the

     10
        Section 2244(d)(2) of Title 28 provides that “[t]he time
during which a properly filed application for State post-
conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.”



                                       28
      federal court to stay and abey the federal                                  habeas
      proceedings until state remedies are exhausted.

Id. at 416.       The stay and abeyance procedure was recommended by

the Pace Court          without     any        discussion          of   whether     the    habeas

petitioner    was       pursuing      a        mixed       § 2254       petition.         To    the

contrary, the Pace decision appears to authorize use of the stay

and   abeyance         procedure      under          any        circumstances     that         could

warrant a state court resolution of a prisoner’s claims.

            Before we review the district court’s award of § 2254

relief on the exculpatory witness component of Hyman’s Sixth

Amendment     claim,       the     doctrines               of     federalism      and      comity

constrain    us    to     provide      the       North          Carolina    courts      with     an

opportunity       to    weigh    in       on     the       procedural       and   substantive

issues.     We are therefore content to stay this appeal pending

any appropriate state court proceedings. 11



                                                IV.

            Pursuant to the foregoing, we hereby stay this appeal

pending such other and further state court proceedings as may be

appropriate, or pending further order of this Court.                                During the

      11
        We take no position as to what, if any, procedural
avenues may yet be available to Hyman in the Court of Appeals or
Supreme Court of North Carolina.     We observe, however, that
Hyman could have recourse by way of North Carolina’s statutory
MAR process.   See supra note 8; N.C. Gen Stat. § 15A-1411 et
seq.



                                                29
pendency of the stay, we request that counsel — at least every

ninety days — provide us with appropriate status reports.



                                                   APPEAL STAYED




                               30
