Terrence Hyman v. Theodis Beck, No. 10-6652 (4th Cir. 2011)

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The court issued a subsequent related opinion or order on August 10, 2011.

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6652 TERRENCE LOWELL HYMAN, Petitioner Appellee, v. ALVIN W. KELLER, JR., Respondent Appellant.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 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 Appeal stayed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. PER CURIAM: In convicted September in the 2003, Superior petitioner Court of Terrence Bertie Hyman County, was 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). v. Beck, No. 5:08-hc-02066 (E.D.N.C. Mar. 31, See Hyman 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.) 2 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 representation of both conflict Hyman and emanated Speller. from By Smallwood s 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. 3 In his first state court appeal ( Hyman I ), Hyman asserted his Sixth Amendment claim and discussed both conflict of interest issues. Nevertheless, the Court of Appeals of North Carolina only addressed the dual remanding the matter for a hearing. concluded Speller that had Smallwood s not representation On remand, the trial court representation adversely conflict, affected of Hyman s both Hyman defense. and 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 exculpatory witness Certiorari was Accordingly, the to component denied, North have of his however, Carolina that court Sixth on consider Amendment December courts have claim. 22, never the 2008. 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 4 club, according to Speller, but he only fired gunshots into the air. 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 See J.A. 62. lawyer then representing Hyman. 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 crossexamination 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 Hyman s violation case in the hearing, parking he lot talked of with her Smallwood office. about Speller s account was that he told Smallwood that his evidence would harm 5 [Hyman] more than [it] could help him. J.A. 72. Faced with Speller s intransigence, Smallwood requested the trial court to 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, nightclub s owner (who was unrelated to Demetrius Pugh). the Lloyd Pugh testified to breaking up a fight between Telly Swain once a co-defendant of Hyman and Swain s brother. Lloyd Pugh saw Hyman leave the club. While doing so, 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. 6 On September 16, 2003, the jury recommended a sentence of life without parole, 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 Carolina. of which and sentence in the Court of Appeals of North He initially presented ten assignments of error, two (Assignments Amendment claim. 2 9 and 10) are relevant to his Sixth 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 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. 7 when it became apparent that she had a conflict of interest. Id. In his appellate brief in Hyman I, Hyman Assignments of Error 9 and 10 for briefing purposes. the dual actual representation conflict of conflict, interest Hyman exists explained where combined Addressing that defense [a]n counsel represents both the defendant and a State s witness, even if that representation Hyman maintained is that in the an unrelated trial court matter. had erred J.A. when, 268. 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 witnesses. Speller, J.A. 269. one of the State s most crucial 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 8 weight oath. had she been on the stand testifying under Id. 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. conflict of The James court recognized a Sixth Amendment 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 attorney. several avenues 433 S.E.2d at 758. of possible conflict for an 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 9 the time of trial attorney . . . resulted in of both an parties unavoidable by conflict [the] as to confidential communications, and affected counsel's ability to 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 pursue line of a witness and his defense lawyer impeachment choice had to questioning could have decide with required whether a the to particular attorney himself to testify and thus could have created the possibility that the attorney would have to withdraw from the case. S.E.2d at 460. 500 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 10 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 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 right to conflict-free counsel. concluded that the Green his Id. defendant client s Sixth Amendment Nevertheless, the court 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 3 The Hyman I Opinion is found at J.A. 107-13. 11 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 appeals emphasized that, even absent an objection, when a trial court becomes aware of a lawyer s potential conflict interest, it is obliged to conduct an appropriate hearing. James, 433 S.E.2d at 758. appeals observed that, of See Based on that precedent, the court of [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 probation violation hearing. had represented Speller in the The court did not acknowledge the exculpatory witness conflict. 12 3. On November 2, 2005, the trial court conducted the hearing directed by the court of appeals in Hyman I. At the 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 herself. the The sole witness at the hearing was Smallwood She explained that her representation of Speller in probation violation hearing occurred on a single 2002, more than a year before the Hyman trial. day in According to Smallwood, she represented Speller for only five to ten minutes, during which there was no discussion of Hyman or the Bennett shooting. Smallwood representation of also Speller asserted did 4 (incorrectly) not overlap that with her her At the Hyman I remand hearing, Hyman was represented by attorney Jackson Warmack, who had represented Telly Swain in the original murder trial. Before the hearing began, however, Hyman waived any conflict of interest on Warmack s part. 13 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. discussions with representation of Smallwood maintained Speller about Hyman s Speller concluded. On that defense she had after her 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 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. 14 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. including The Remand Ruling made several findings of fact, 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. on the dual Id. at 2. representation The Remand Ruling denied relief conflict, specifying that Smallwood s representation of Terrence Hyman was not adversely affected by her previous representation of Derrick Speller. Id. 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 5 The Remand Ruling is found at J.A. 135-36. 15 [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 representation of Speller had not adversely affected Hyman. prior See State v. Hyman, No. 06-939 (N.C. Ct. App. Apr. 3, 2007) (the Hyman II Opinion ). 6 contention thusly: it concluded The court of appeals characterized Hyman s Defendant argues the trial court erred when Smallwood s representation of him had not been adversely affected by her prior representation of Speller, a 6 The Hyman II Opinion is found at J.A. 137-41. 16 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, v. under State concluded that had not James, Smallwood s adversely the trial previous affected Hyman: court had representation As distinct correctly of Speller 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 defendant at his first degree murder trial. quotation marks omitted). 7 representation of Id. at 5 (internal Furthermore, the court of appeals observed: 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. 7 As established represented Speller at September 26, 2002. She Hyman since May 2001. September 2003. at the remand hearing, Smallwood his probation violation hearing on had by then already been representing Hyman s trial did not commence until 17 Id. (internal quotation marks omitted). Again, as in Hyman I, the court did not acknowledge the exculpatory witness conflict. 5. Thereafter, certiorari in the on May Supreme 31, Court 2008, of Hyman North petitioned Carolina. In for 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 underscored the that exculpatory the court witness of component, appeals didn t and he mention Smallwood s conflicted position as a witness to Speller s highly Id. at 200. material inconsistent prior statement. 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 between conflicts the Id. at violation interests between 202. the Hyman of may arise counsel s client s and maintained not only clients, counsel s that from but own conflicts also from interests. Smallwood s conflict adversely affected him in that it would be impossible for any 18 attorney to make an objective assessment of her own importance as a witness, considerations independent arising serving as counsel. Supreme Court of from of her personal likely Id. at 208. North petition for certiorari. Carolina and professional inability to continue On December 11, 2008, the summarily denied Hyman s 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 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. ). 19 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. granted By its Order of March 31, 2010, the district court the writ. The District disposed of two issues: Court Order addressed and (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, exhaustion issue. maintained that the district court began with the In its motion for summary judgment, the State 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 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. defaulted As such, the State contended, Hyman had procedurally the exculpatory federal court review. witness component for purposes of The district court disagreed with the 20 State, premised on its determination that there was no failure to exhaust because both the Court of Appeals and the Supreme Court of North opportunity to Carolina consider were the given substance a of full and [Hyman s] fair 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. during pretrial District Court Order 12. representation counsel Furthermore, if 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 Pugh that Jordan had actually murdered Bennett. 9 Id. at 15.9 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). 21 Smallwood s affected actual her conflict performance, and Amendment right to counsel. North Carolina district courts court, an to of Hyman Id. the interest [thereby] was denied adversely his Sixth The implicit conclusion of the contrary objectively was, according unreasonable to the 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 See Bauberger v. Haynes, 632 F.3d 100, habeas corpus relief. 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 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 22 facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). III. In contest the Hyman s this appeal, merits Sixth of the the Amendment State not exculpatory claim, but only continues to witness component of also reiterates the contention that Hyman failed to exhaust the exculpatory witness component of the claim in the North procedurally defaulted federal review. Carolina courts and Section 2254(b)(1)(A) of Title 28 provides that a writ of habeas corpus shall not be granted unless available in the the applicant courts of the has exhausted State. the remedies 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 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 doctrine of procedural default. 1998). federal habeas review the 134 F.3d 615, 619 (4th Cir. One manner in which procedural default occurs is 23 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). occurs [i]f a state court clearly Procedural default also and expressly bases its dismissal of a habeas petitioner s claim on a state procedural rule, and that procedural rule adequate ground for the dismissal. provides an independent and 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 statelaw 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)). 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. of Appellant 11. Br. The State further maintains that, [b]ecause Hyman cannot now return to state court and raise his § 2254 claim anew, it is procedurally defaulted. 24 Id. Of course, as heretofore Supreme discussed, Court of neither North the Carolina Court has of Appeals the confronted directly nor 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. v. Weber, 544 U.S. 269, 275-78 (2005). The See Rhines 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. U.S. at 269. See 544 Prior to AEDPA s enactment, a district court could dismiss a mixed habeas petition without prejudice and permit the 25 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 ). 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. 26 544 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. DiGuglielmo, 544 U.S. 408, 416 (2005); see See Pace v. 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 postconviction or collateral review tolls established in 28 U.S.C. § 2244(d)(2). 10 the AEDPA time bar 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 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 petitioner pursuing a was discussion mixed of § 2254 whether petition. the habeas To the contrary, the Pace decision appears to authorize use of the stay 10 Section 2244(d)(2) of Title 28 provides that [t]he time during which a properly filed application for State postconviction 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. 27 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, constrain us opportunity issues. to to the doctrines provide weigh in of the North on the federalism Carolina procedural and courts and comity with an substantive 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 pendency of the stay, we request that counsel at least every ninety days provide us with appropriate status reports. APPEAL STAYED 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. 28

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