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NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
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official text of the opinion.

In the Supreme Court of Georgia

Decided: January 5, 2026

S25A1367. DILLS v. WEAVER.

LAND, Justice.

Warden Allen Dills appeals the grant of a writ of habeas corpus

to appellee Tamara Nicole Weaver, who was found guilty after a

2014 jury trial of two counts of cruelty to children in the first degree,

two counts of cruelty to children in the second degree, three counts

of aggravated battery, and three counts of aggravated assault in

connection with the physical abuse of her infant son, K.W.1 In 2023,

Weaver filed a petition for writ of habeas corpus, which was granted

based on the habeas court’s finding that her trial counsel provided

her with ineffective assistance by operating under an actual conflict

of interest arising from his previous representation of her then-

1 In 2019, the Georgia Court of Appeals affirmed Weaver’s convictions,

and this Court denied certiorari review. Weaver v. State, 351 Ga. App. 167, 176
(2019), cert. denied, No. S19C1502 (Ga. Feb. 10, 2020).
husband and co-defendant, Michael Tyler, in the same case. Having

reviewed the record, we affirm the habeas court’s grant of relief.

1. The underlying proceedings

(a) The trial evidence 2

In early 2013, Weaver had two sons, K.W. and a six-year-old.

When K.W. was less than two months old, Weaver and her children

moved in with Tyler.3 Although K.W. slept in the same bedroom as

Weaver and Tyler, he had his own bed. When he cried at night,

Weaver took him out of the couple’s room. When Weaver returned

to work, her mother took care of K.W. Weaver, Tyler, and Weaver’s

mother were the baby’s only caregivers.4

On March 6, 2013, when K.W. was almost three months old,

Weaver took him to Scottish Rite children’s hospital after she

2 A more detailed recitation of the facts can be found in the Court of

Appeals opinion affirming Weaver’s convictions. See Weaver, 351 Ga. App. at
167–69.
3 Tyler is not K.W.’s biological father. Tyler and Weaver were married

sometime between March 6 and March 8, 2013, shortly after K.W.’s injuries
were discovered during an emergency room visit, as discussed below.
4 At trial, Weaver and Tyler stipulated that law enforcement had ruled

out Weaver’s mother as a suspect in the case.

2
became concerned by the infant’s worsening fussiness, which she

described as not “normal.” At the hospital, x-rays ordered by a child

abuse pediatrician revealed that K.W. had 16 bone fractures of

varying ages. Genetic testing ruled out the possibility of brittle bone

disease or other medical disorders that could have contributed to the

fractures, and the pediatrician testified at trial that K.W.’s injuries

were most consistent with physical abuse. Weaver told the hospital

pediatrician and law enforcement that she did not know how K.W.

had sustained his injuries and denied that anyone had hurt him.

Meanwhile, Tyler told the pediatrician and law enforcement that

Weaver was not getting much sleep, that Weaver was “cracking” due

to K.W.’s crying and fussiness, and that Weaver “dealt with him,”

but had no explanation for K.W.’s injuries. In a forensic interview,

Weaver’s older son did not “disclose anything where he was being

abused” or that he had witnessed any abuse of K.W. Weaver and

Tyler were arrested on March 18, 2013.

On June 25, 2013, attorney Morris Fair entered an appearance

on behalf of Tyler in connection with this case and filed a not guilty

3
plea.5 On December 4, 2013, a Spalding County grand jury indicted

Weaver and Tyler for two counts of aggravated battery and two

counts of cruelty to children (the “2013 Indictment”).

On January 7, 2014, Fair again entered an appearance on

behalf of Tyler in connection with the 2013 Indictment. On January

24, 2014, Fair filed a general and special demurrer to the 2013

Indictment, though it is unclear from the record whether he filed it

on behalf of Weaver, Tyler, or both. 6 On February 19, 2014, the 2013

Indictment was nol prossed. That same day, Pamela Stephenson,

an attorney who shared office space with Fair, entered an

appearance on behalf of Tyler in connection with the 2013

Indictment.

On March 12, 2014, a Spalding County grand jury returned an

indictment charging Weaver and Tyler with two counts of cruelty to

children in the first degree, two counts of cruelty to children in the

5 Fair was disbarred in 2017 for reasons unrelated to this case. See In
the Matter of Fair, 300 Ga. 655 (2017).
6 The record does not contain a copy of either demurrer or any entry of

appearance by Fair for Weaver prior to the return of the March 12, 2014
indictment.
4
second degree, three counts of aggravated battery, and three counts

of aggravated assault (the “2014 Indictment”). On April 16, 2014,

Fair entered an appearance on behalf of Weaver and represented

her throughout trial. That same day, Stephenson entered an

appearance on behalf of Tyler and represented him throughout

trial.7

Tyler and Weaver were tried jointly. At trial, neither Weaver

nor Fair sought to blame Tyler for K.W.’s injuries despite the fact

that the Scottish Rite pediatrician testified that K.W.’s injuries were

consistent with abuse and the fact that Weaver and Tyler were the

only two suspects. In her trial testimony, Weaver offered no

alternative hypothesis for K.W.’s injuries, and she testified that she

had no idea how her child was injured, or alternatively, that K.W.

had not been injured at all and that the hospital may have made a

“mistake.”

Tyler testified that there were times that he took care of K.W.

7 Stephenson died on June 17, 2024, prior to the hearing on Weaver’s

habeas petition.
5
alone when Weaver “went and got her nails done and things of that

nature” but that he did not take care of K.W. when Weaver returned

to work after K.W. was born. Tyler also testified that K.W.’s injuries

were “unbelievable” and that “[i]t was something outside of abuse.”

Tyler denied harming K.W. himself and testified that he did not

believe that Weaver had harmed K.W. either.

The detective who interviewed Tyler testified that Tyler stated

during his interview that when K.W. cried, Weaver “dealt with him,”

that K.W.’s fussiness was “wearing [Weaver] down” and that Weaver

was only getting “one to two hours” of sleep per night. The Scottish

Rite pediatrician also testified that Tyler told him that Weaver was

“cracking” due to lack of sleep and K.W.’s crying.

Weaver was found guilty of all charges while Tyler was found

not guilty of all charges. On September 17, 2014, Fair filed a motion

for new trial on Weaver’s behalf. On June 23, 2017, attorney Ivar

Lacis filed an amended motion for new trial. During the hearing on

Weaver’s motion for new trial, Fair testified that his trial strategy

was that “it wasn’t proven that [Weaver] was the one” who harmed

6
K.W. After the hearing, the trial court denied Weaver’s motion for

new trial.

(b) Direct appeal

Lacis also represented Weaver in her direct appeal to the Court

of Appeals. On direct appeal, Weaver enumerated five errors, two of

which involved ineffective assistance of trial counsel claims: (1) that

trial counsel rendered ineffective assistance by failing to move for

the dismissal of the three counts of aggravated battery, and (2) that

trial counsel rendered ineffective assistance by failing to object to

the trial court’s jury instruction for cases based on wholly

circumstantial evidence. Lacis raised no issue on appeal concerning

Fair’s conflict of interest in representing Weaver after having

previously represented her co-defendant, Tyler. The Court of

Appeals affirmed Weaver’s convictions and sentences, and this

Court denied certiorari review. See Weaver, 351 Ga. App. 167 (2019),

cert. denied, No. S19C1502 (Ga. Feb. 10, 2020).

In 2023, represented by new counsel, Weaver filed the habeas

7
petition in this case, alleging, among other things, that Fair

rendered ineffective assistance of counsel due to a conflict of interest

stemming from his initial joint representation of both Weaver and

Tyler. Although the record contains no entry of appearance that

Fair filed on behalf of Weaver before April 16, 2014, Fair testified at

the habeas hearing that he was retained by both Weaver and Tyler

after their arrests on March 18, 2013. Fair testified that he met

with Weaver and Tyler, filed a motion to get Weaver visitation of her

son, and filed motions to modify both Weaver and Tyler’s bond

conditions. Fair admitted that he “may” have told Weaver and Tyler

“at the start of the case” that he could represent both of them “as

long as they were not pointing the finger at each other.”

In December 2013 or January 2014, several months after Fair

first entered an appearance on behalf of Tyler, Fair determined that

Weaver and Tyler needed separate counsel. Fair testified that after

conversations with Weaver about “potential defenses … [he]

suggested that [Tyler] would probably need to get another attorney.”

When asked whether those “possible defenses … would have been

8
something that would have implicated Mr. Tyler,” Fair answered,

“yes.”8

After deciding that Weaver and Tyler needed separate counsel,

Fair met with the couple and suggested his office-mate, Stephenson,

as the second attorney. When asked whether he advised Weaver

that he would be unable “to investigate and present a case on Ms.

Weaver’s behalf that Mr. Tyler may have done this” due to his prior

representation of Tyler, Fair answered, “No. I didn’t say that was

the situation at all.” Fair admitted that he did not disclose any

conflict of interest to Weaver, advise her of the risks associated with

dual representation, advise her to consult independent counsel

about the conflict, or obtain written consent to continue representing

her. Fair testified that he had conversations with Weaver about

arguing Tyler’s guilt as an alternative theory, but that Weaver

“would not even entertain” the possibility. Fair did not investigate

Tyler’s culpability or interview Weaver’s older son.

8 Despite his apparent recognition that Weaver and Tyler needed
separate counsel, Fair continued to represent Weaver and filed a second entry
of appearance for Tyler on January 7, 2014.
9
Fair testified that his defense theory at trial was that Weaver

did not commit the acts that she was charged with and that she was

a “loving mother” who took her child to the hospital. Fair testified

that he “considered” making the argument that Tyler was guilty, but

that Weaver “wanted to go with” a defense theory that K.W.’s

injuries were accidental. When asked whether his defense was that

someone other than Weaver harmed K.W., Fair stated “[o]r it was

an accident” and that Weaver “possibly could have rolled on [K.W.]

and could have caused the damage.” However, Fair did not consult

with any experts, did not remember whether he actually presented

an accident defense at trial,9 and conceded that rather than showing

an accident had occurred, “[t]he medical evidence suggest[ed] that

someone had beat the boy up.”

When asked why he did not cross-examine Tyler at trial, Fair

stated that Weaver and Tyler “both denied having any knowledge of

what could have happened” to K.W., and that “based upon the

9 The opening statements and closing arguments at trial were not
transcribed, and the jury was not instructed on the defense of accident nor
was such an instruction ever requested.
10
information that [Weaver] gave me,” “there was no reason for me to

cross-examine [Tyler], because I wasn’t trying to point the finger at

him.” When asked whether he would have cross-examined Tyler if

he gave “any testimony that [Fair] felt was damaging” to Weaver,

Fair stated “[o]f course.” Fair never explained how the decision not

to blame Tyler in any way squared with his testimony that the

medical evidence suggested that K.W. had been “beat” up, that Tyler

was the only alternative suspect, and that his conversations with

Weaver about possible defenses did in fact implicate Tyler.

During the evidentiary hearing on her habeas petition, Weaver

testified that Tyler was verbally abusive toward her during their

relationship. 10 After the couple was arrested in connection with

K.W.’s injuries, Tyler became physically and sexually abusive

toward Weaver and threatened to kill her if she left him. Weaver

testified that her older son witnessed Tyler’s abuse against her, that

Tyler’s family was “aware” of the abuse, and that she told a co-

10 Fair conceded during the habeas hearing that if he had evidence that

Weaver was being abused by Tyler, “that would have changed the nature of
the case.”
11
worker about the abuse. Weaver also testified that although she

called the police about Tyler’s abuse, Tyler was not arrested.

Weaver stated that she testified during her trial that she did not

believe that anyone had harmed K.W. because she “didn’t want to

believe” he had been abused.

With regard to Fair’s representation, Weaver testified that she

believed Fair was going to represent both her and Tyler, and that

Fair never warned her about potential conflicts of interest or advised

her to consult with another attorney about his representation of her.

According to Weaver, Fair stated that “as long as nobody was

pointing a finger at the other, then he could represent both of us.”

Weaver testified that although she told Fair she was “innocent,” she

did not remember telling Fair that she did not want to blame Tyler

for K.W.’s injuries, and she specifically denied that Fair ever spoke

with her about trial strategy. About two weeks before trial, Fair

called Weaver and told her and Tyler that they “would need another

attorney going into trial.” Weaver testified that she, Tyler, and Fair

all met with Stephenson, and that she left that meeting with the

12
impression that Stephenson would be representing her at trial. On

the morning of trial, however, Weaver learned that Fair would

remain her attorney.

Dr. Marti Loring, an expert witness in trauma and domestic

violence, testified at the habeas hearing that she diagnosed Weaver

with PTSD stemming from childhood abuse and her relationship

with Tyler. Dr. Loring also testified that Weaver’s PTSD manifested

as passivity rather than aggression, that Weaver exhibited battered

person syndrome and Stockholm Syndrome symptoms, and that her

inability to recognize Tyler as K.W.’s abuser was consistent with

PTSD and battered person syndrome. Dr. Loring further testified

that there are behaviors common in child abusers, including

intolerance for crying and a tendency to punish physically, and that

Tyler’s behaviors fit those criteria.

Weaver’s appellate counsel, Ivars Lacis, who represented

Weaver at the motion for new trial stage and on direct appeal, also

testified at the habeas hearing. Lacis testified that he reviewed

Fair’s case file, including the entire trial transcript, but did not know

13
whether he reviewed the complete record in preparing Weaver’s

direct appeal. Lacis testified that he did not investigate Weaver’s

abuse allegations against Tyler. Lacis testified that he did not think

that Fair’s initial joint representation of Weaver and Tyler was

unusual “because it’s very common that people are charged jointly

with a crime. They initially go to one attorney, and then the cases

are farmed out” to conflict attorneys. Lacis admitted that he did not

know that Fair had filed an entry of appearance on behalf of Tyler

but that it did not change his analysis of whether that made Fair

conflicted. When asked whether he looked into a conflict of interest

involving Fair and Stephenson, Lacis stated that he determined that

a conflict of interest claim did not have any merit because the two

attorneys were unaffiliated. Lacis also testified that he did not see

any issue in Fair not cross-examining Tyler at trial because he was

cross-examined “extensively” by the State and he did not see “the

point” of Fair asking the “same questions.” However, Lacis conceded

that there was a basis on which to argue Tyler’s culpability as a

reasonable alternative hypothesis.

14
In its order granting Weaver’s petition, the habeas court found

that Fair “originally represented both [Weaver] and [Tyler] during

pretrial proceedings, without disclosing the obvious conflict” to

Weaver, and that Fair “failed to advise [Weaver] of the risks

associated with dual representation.” The habeas court also found

that Fair’s prior attorney-client relationship with Tyler “prevented

him from cross-examining” Tyler, who was the only remaining

alternative suspect due to pretrial stipulations by the defendants.

The habeas court further found that as a result of his conflict of

interest, Fair was “unable” to pursue the theory that Tyler was

guilty and was instead “confined to arguing that the treating

physician at Scottish Rite Hospital had misdiagnosed [K.W.]’s

injuries.” The habeas court concluded that these constraints on

Fair’s representation “arose directly from counsel’s conflict of

interest due to his prior representation” of Tyler and “impaired his

ability to zealously advocate” for Weaver at trial; accordingly, Fair’s

performance was adversely affected and Weaver established that

there was a conflict of interest.

15
The habeas court rejected the Warden’s argument that

Weaver’s claim is procedurally defaulted because she did not raise

it on direct appeal, finding that Weaver’s appellate counsel’s “failure

to raise the conflict-of-interest claim resulted from his own

constitutionally deficient performance” because appellate counsel

admitted that he “did not thoroughly review the record,” relying

solely on trial counsel’s trial file, and that he was “unaware of the

impropriety of dual representation, believing it to be common

practice.” The habeas court concluded that “[t]his ineffective

assistance excuses any procedural default.” Because the habeas

court granted Weaver relief based on its finding that Fair’s conflict

of interest adversely affected his representation of Weaver, the

habeas court granted Weaver’s petition without addressing her

remaining claims.

2. With respect to the issue of trial counsel’s ineffectiveness

arising from his conflict of interest, the Warden argues that the

habeas court erred in granting Weaver habeas relief because

Weaver has not shown that Fair’s prior representation of Tyler

16
adversely affected his representation of Weaver. We disagree.

“When reviewing a habeas court’s decision on a defendant’s

attorney conflict of interest claim, we accept the court’s factual

findings unless they are clearly erroneous, but we apply the law to

those facts de novo.” Hall v. Jackson, 310 Ga. 714, 719–20 (2021). “A

habeas court’s factual findings cannot be found to be clearly

erroneous if there is evidence in the record to support such findings.”

Smith v. Magnuson, 297 Ga. 210, 212 (2015). “We also must yield to

the judgment of the habeas court with respect to the credibility of

witnesses who testified in the habeas proceedings.” Humphrey v.

Walker, 294 Ga. 855, 860 (2014). “[A] habeas court’s determination

regarding the presence or absence of an actual conflict of interest is

a mixed question of fact and law which this Court reviews de novo.”

Edwards v. Lewis, 283 Ga. 345, 349–50 (2008). See also Johnson v.

State, 305 Ga. 475, 477 (2019) (“Whether a conflict of interest denied

a defendant his right to effective counsel is a mixed question of law

and fact, and we review the questions of law involved de novo.”).

“[F]or purposes of evaluating an ineffective assistance claim,

17
an actual conflict of interest means precisely a conflict that affected

counsel’s performance – as opposed to a mere theoretical division of

loyalties.” Adams v. State, 317 Ga. 342, 351 (2023) (cleaned up).

“Prejudice is presumed if the defendant demonstrates that the

conflict of interest existed and that it significantly affected counsel’s

performance.” Id. at 352 (cleaned up). When evaluating a claim of

ineffective assistance of counsel based on a conflict of interest, “[t]he

critical question is whether the conflict significantly affected

the representation, not whether it affected the outcome of the

underlying proceedings.” Hall, 310 Ga. at 720 (citation and

punctuation omitted). “That is precisely the difference between

ineffective assistance of counsel claims generally, where prejudice

must be shown under the two-part test set forth in Strickland v.

Washington, 466 US 668, 687 (1984), and ineffective assistance of

counsel claims involving actual conflicts of interest, which require

only a showing of a significant effect on the representation.” Id.

(cleaned up).

Joint representation alone does not amount to an actual

18
conflict of interest. See Burns v. State, 281 Ga. 338, 340 (2006). “A

common defense often gives strength against a common attack,”

Holloway v. Arkansas, 435 US 475, 482–83 (1978), and “a mere

failure to emphasize the different culpability of each co-defendant

does not always and necessarily demonstrate an actual conflict.”

Tolbert v. State, 298 Ga. 147, 154 (2015). However, “[a] significant

effect on the representation may be found, for example, where

counsel is shown to have refrained from raising a potentially

meritorious issue due to the conflict … or where one of the State’s

witnesses was a current client of defense counsel in an unrelated

criminal matter, thereby constraining counsel’s ability to cross-

examine the witness.” State v. Abernathy, 289 Ga. 603, 605 (2011).

This Court has previously held that “an actual conflict of

interest adversely affect[s] the attorney’s performance where

counsel fail[s] to pursue an alternative defense theory that is more

favorable to one defendant but which would have prejudiced a co-

defendant by shifting blame to him.” Ellis v. State, 272 Ga. 763, 766

(2000) (citation and punctuation omitted), overruled on other

19
grounds by Alexander v. State, 297 Ga. 59 (2015). See also

McFarland v. Yukins, 356 F3d 688, 709 (6th Cir. 2004) (trial counsel

who jointly represented co-defendants had actual conflict of interest

where counsel ignored “obvious and strong” defense of inculpating

co-defendant, who shared the apartment, as possessor of drugs, and

instead implausibly argued that third parties possessed drugs);

Griffin v. McVicar, 84 F3d 880, 888 (7th Cir. 1996) (“[C]ounsel may

be ineffective if the joint representation precludes an obvious and

viable alternative defense when the common defense is so

completely untenable.”); United States v. Romero, 780 F2d 981, 986–

87 (11th Cir. 1986) (defense counsel’s simultaneous representation

of multiple co-defendants presented an actual conflict of interest

where defendant had an “extremely feasible” blame-shifting defense

that “was completely foreclosed to him because it would have

implicated his codefendant and another client of his attorney”).

Here, the habeas court found that Fair’s joint representation of

Tyler and Weaver in pretrial proceedings (more specifically, his

prior representation of Tyler in this case) prevented him from cross-

20
examining Tyler at trial and made him unable to argue that Tyler

was the real culprit. Accordingly, the habeas court concluded that

Fair’s conflict of interest “impaired his ability to zealously advocate”

for Weaver at trial. Viewing the evidence in the light most favorable

to that determination, the record supports the habeas court’s finding

that Fair’s conflict of interest affected his performance as Weaver’s

trial counsel and caused him not to pursue an alternative defense

theory that would have been favorable to Weaver but unfavorable to

Tyler.

Fair conceded at the habeas hearing that medical evidence

showed that K.W. was “beat” up and that the only alternative

suspect was Tyler. Given this concession, which the habeas court

was authorized to—and at least implicitly did—credit, it is

inexplicable that, as a matter of trial strategy, conflict-free counsel

would have failed to blame, or even investigate, Tyler in any way.

See State v. Mamedov, 288 Ga. 858, 861 (2011) (concluding that if

trial counsel had “been retained and paid” by appellant alone,

conflict-free counsel “would at the very least have… considered” an

21
alternative defense theory on appellant’s behalf). Moreover, Fair

conceded that he represented both Weaver and Tyler for several

months before determining that they needed separate counsel due

to conversations with Weaver about potential defenses that

implicated Tyler. Thus, Fair recognized that there was a potential

conflict of interest arising from his prior representation of Tyler, and

his testimony confirms that Weaver had a potentially meritorious

defense that he did not pursue or even investigate.

We reject the Warden’s argument that Fair’s abandonment of

Weaver’s alternative defense without any investigation did not

result from his divided loyalties but instead from Weaver’s

instructions regarding trial strategy. As an initial matter, Weaver

denied having any recollection of discussions with Fair concerning

her alleged desire not to blame Tyler, and she expressly denied

having any conversations with Fair regarding trial strategy. Even

though Fair provided contrary testimony, the evidence was in

conflict on this issue, and the habeas court’s order implicitly found

Fair less credible than Weaver. Because the evidence was in conflict,

22
the habeas judge was authorized to discredit Fair’s explanation. See

Harris v. Upton, 292 Ga. 491, 496 (2013) (“A habeas judge sits as the

trier of facts and may reject the testimony of a witness in whole or

in part”).

In addition, the habeas court had other reasons to question

Fair’s credibility and to discredit his testimony. Specifically, Fair

testified that after consultation with Weaver, he decided to pursue

an accident defense, suggesting that K.W.’s injuries might have been

caused by co-sleeping. However, there is nothing in the record to

support Fair’s assertion that he actually pursued this defense at

trial. Weaver did not testify that K.W. slept in her bed or that she

may have accidentally injured him but instead testified that she

believed doctors may have made a “mistake” when they diagnosed

K.W.’s injuries. In addition, at the hearing on Weaver’s motion for

new trial, Fair confirmed that his trial strategy was simply that “it

wasn’t proven that [Weaver] was the one” who harmed K.W. In

short, Fair’s testimony that he decided to pursue an accident defense

is not supported by the record.

23
Given the conflicting evidence and the doubts that were cast

upon Fair’s credibility at the habeas hearing, the habeas court was

authorized to reject his testimony, credit Weaver’s testimony that

Fair did not talk with her about trial strategy, and find, as it did,

that Fair’s representation of Weaver was adversely affected by his

prior representation of Tyler. See Harris, 292 Ga. at 496.

Thus, viewing the evidentiary record in the light most

favorable to the habeas court’s finding that Weaver’s trial counsel

had a conflict of interest that prevented him from cross-examining

or blaming Tyler for K.W.’s injuries, see Tolbert, 298 Ga. at 154 n.8,

we conclude that the habeas court did not err in granting relief on

the basis that this conflict of interest adversely affected trial

counsel’s performance. See Hall, 310 Ga. at 723 (affirming habeas

court’s grant of relief where evidence failed to show that counsel’s

actions were the result of strategic decision but instead supported

finding that counsel’s performance was adversely affected by conflict

of interest); Mamedov, 288 Ga. at 860-61 (no error in habeas court’s

finding of an actual conflict of interest that adversely affected

24
counsel’s performance where trial counsel, who jointly represented

Mamedov and his co-defendant, failed to pursue or even consider an

alternative defense theory on behalf of Mamedov and instead

testified that he believed Mamedov “had no defense”).

3. The Warden argues that Weaver’s claim that her trial

counsel was ineffective due to his conflict of interest is procedurally

barred since that claim was not asserted in her direct appeal and

that the habeas court erred in finding otherwise. In support of this

argument, the Warden argues that the habeas court erred in finding

that Weaver’s appellate counsel’s failure to raise this issue in

Weaver’s direct appeal was deficient, and that the habeas court

failed to consider whether Weaver was prejudiced by that deficient

performance. For the following reasons, these claims fail.

“Georgia law directs habeas courts to consider whether a

petitioner has complied with Georgia procedural rules at trial and

on appeal and further provides that absent a showing of cause for

noncompliance with such requirement, and of actual prejudice,

habeas corpus relief shall not be granted.” Chatman v. Mancill, 278

25
Ga. 488, 489 (2004) (citation and punctuation omitted); OCGA § 9-

14-48(d). Because Weaver did not raise the issue of trial counsel

ineffectiveness based on conflict of interest in her direct appeal, the

habeas court could consider her claim “only if the ‘cause and

prejudice’ test is satisfied or in order to avoid a miscarriage of justice

where there has been a substantial denial of constitutional rights.”

Chatman, 278 Ga. at 489. The cause and prejudice test can be met

by showing that appellate counsel was constitutionally ineffective

for failing to raise a claim on direct appeal. See Humphrey, 294 Ga.

at 858 (“A common method of satisfying the cause and prejudice test

is to show that trial and direct appeal counsel rendered ineffective

assistance[.]”) (citation and punctuation omitted).

“[W]here the alleged ineffective assistance of appellate counsel

is premised upon the failure to raise ineffective assistance of trial

counsel on direct appeal, two layers of fact and law are involved in

the analysis of the habeas court’s decision.” Gramiak v. Beasley, 304

Ga. 512, 513 (2018).

To find that appellate counsel provided ineffective

26
assistance, a reviewing court must find appellate
counsel’s failure to raise trial counsel’s ineffectiveness on
appeal represents deficient professional conduct. Even if
deficient performance of appellate counsel is shown, a
demonstration of prejudice requires a showing that, had
the ineffective assistance of trial counsel been raised on
direct appeal, a reasonable probability exists that the
outcome of the appeal would have been different.
Id.

Thus, to prevail on her claim that appellate counsel’s failure to

raise the issue of trial counsel’s conflict of interest on appeal

establishes ineffective assistance of appellate counsel, Weaver must

“demonstrate that this omission represents deficient professional

conduct—that is, that it was outside the wide range of professionally

competent assistance.” Gramiak, 304 Ga. at 521 (citation and

punctuation omitted). “[R]egardless of the relative strengths and

weaknesses of the errors actually enumerated in the appeal and

those not raised, the controlling principle is whether appellate

counsel’s decision was a reasonable tactical move which any

competent attorney in the same situation would have made.”

Sullivan v. Kemp, 293 Ga. 770, 774 (2013) (citation and punctuation

omitted).

27
“[I]t is the attorney’s decision as to what issues should be raised

on appeal, and that decision, like other strategic decisions of the

attorney, is presumptively correct absent a showing to the contrary

by the defendant.” Hooks v. Walley, 299 Ga. 589, 591 (2016) (citation

and punctuation omitted). However, “[a] lawyer’s failure to raise a

claim on appeal might be unreasonable if that claim had clear and

strong merit under the law as it existed at the time of the appeal,”

Benton v. Hines, 306 Ga. 722, 724 (2019) (citation and punctuation

omitted), and a failure to raise a claim on appeal that is “based upon

[a] lack of understanding of or familiarity with the relevant law” is

not strategic. Sullivan, 293 Ga. at 774. See also Barker v. Barrow,

290 Ga. 711, 712 (2012) (the reasonableness of appellate counsel’s

conduct “is assessed from the perspective of counsel at the time of …

appeal and under the specific circumstances of the case”). Because

“[a]n ineffective assistance claim presents a mixed question of fact

and law … we accept the habeas court’s findings of fact unless

clearly erroneous but independently apply those facts to the law.”

Brown v. Baskin, 286 Ga. 681, 684 (2010) (citation and punctuation

28
omitted).

Here, appellate counsel testified at the habeas hearing that he

did not review the complete court record in preparing Weaver’s

direct appeal and was unaware of the extent of Fair’s prior

representation of Tyler. Despite being unaware of the extent of

Fair’s prior representation of Tyler, appellate counsel testified that

Fair’s initial joint representation of Weaver and Tyler was

“common” and conducted no further investigation into whether it

was improper. Appellate counsel also testified that he determined

a conflict of interest claim would not have any merit because the two

attorneys involved in the case, Fair and Stephenson, were

unaffiliated, a determination separate from whether Fair’s prior

representation of Tyler created a conflict of interest that adversely

affected his representation of Weaver. Appellate counsel also

admitted that he did not investigate Weaver’s abuse allegations and

that he did not see “the point” of Fair cross-examining Tyler at trial

because he was cross-examined by the State.

Based on the above, it is apparent that appellate counsel did

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not make a strategic decision to omit the conflict of interest claim

from Weaver’s direct appeal. Rather, the evidence supports the

conclusion that the failure to raise this claim resulted from counsel’s

misunderstanding of the relevant law and lack of appreciation for

the fact that the claim was meritorious; thus, appellate counsel’s

actions fell below an objective standard of reasonableness. See

Sullivan v. Kemp, 293 Ga. 770, 774 (2013) (concluding that appellate

counsel’s failure to raise claim on direct appeal “fell below an

objective standard of reasonableness and establishe[d] [that]

appellate counsel’s performance was deficient”).

We reject appellate counsel’s contention that Fair had no

conflict of interest under the circumstances of this case, a position

that is refuted by controlling precedent. The evidence in the case

showed that K.W. was abused and that the only suspects were Tyler

and Weaver. Thus, Weaver was entitled to have conflict-free counsel

that was not constrained in his ability to advocate for her by placing

blame on Tyler. However, as the habeas court found, Fair was not

that counsel. Due to his prior representation of Tyler, Fair had a

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conflict of interest that prevented him from taking any action

adverse to Tyler’s interests, and this conflict adversely affected his

representation of Weaver.

Because Fair had previously represented Tyler in connection

with this case, he was ethically precluded under the Rules of

Professional Conduct from taking any action that would place the

blame on Tyler for K.W.’s injuries. See Georgia Rule of Professional

Conduct 1.9(a) (“[a] lawyer who has formerly represented a client in

a matter shall not thereafter represent another person in the same

or a substantially related matter in which that person’s interests are

materially adverse to the interests of the former client unless the

former gives informed consent, confirmed in writing”); Georgia Rule

of Professional Conduct 1.9(c)(1) (“[a] lawyer who has formerly

represented a client in a matter … shall not thereafter … use

information relating to the representation to the disadvantage of the

former client except as Rule 1.6 or Rule 3.3 would permit or require

with respect to a client, or when the information has become

generally known”).

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Given these facts, the evidence showing K.W. was abused, and

the parties’ stipulation at trial that Weaver and Tyler were the only

suspects, the habeas court did not err in concluding that Weaver’s

appellate counsel rendered deficient performance by failing to raise

the meritorious issue of her trial counsel’s conflict of interest during

the direct appeal. See Brown, 286 Ga. at 683 (habeas court did not

err in finding that appellate counsel performed deficiently by failing

to raise meritorious issue on direct appeal).

Having concluded that the habeas court did not err in finding

that appellate counsel performed deficiently, we turn next to the

Warden’s argument that the habeas court did not consider whether

Weaver was prejudiced by that deficient performance. In order to

show that she was prejudiced by her appellate counsel’s deficient

performance, Weaver had to show that the result of her appeal

would have been different had appellate counsel raised the issue of

trial counsel’s conflict of interest. See Humphrey v. Lewis, 291 Ga.

202, 211 (2012) (“In order to establish the prejudice prong of an

ineffective assistance of appellate counsel claim, the petitioner must

32
show a reasonable probability that the outcome of the appeal would

have been different.”) (cleaned up), overruled on other grounds by

State v. Lane, 308 Ga. 10 (2020).

Because the habeas court found that Weaver’s underlying

conflict of interest claim was in fact meritorious, it logically follows

that it concluded that Weaver would have prevailed in her appeal

had this issue been raised. The habeas court’s conclusion that this

claim has merit and that Weaver has overcome the procedural

default is an implicit finding that Weaver has shown she was

prejudiced by her appellate counsel’s deficient performance.

Accordingly, we reject the Warden’s argument that the habeas court

failed to address the issue of prejudice.

With respect to whether Weaver was in fact prejudiced by her

appellate counsel’s deficient performance, the Warden argues that

she was not. We disagree. As explained in Division 2 above, we reject

the Warden’s argument on the merits of the underlying conflict of

interest claim. As discussed in detail in that Division, the record

supports the habeas court’s finding that trial counsel had a conflict

33
of interest that adversely affected his representation of Weaver and

that trial counsel rendered ineffective assistance of counsel as a

result. Thus, Weaver’s appellate counsel’s failure to raise that

meritorious issue during the direct appeal prejudiced her because

there is a reasonable probability that the outcome of the appeal

would have been different had such a claim been raised. See

Humphrey, 291 Ga. at 211. Accordingly, Weaver has met the cause

and prejudice test necessary to overcome the procedural default. See

Humphrey, 294 Ga. at 858.

For the foregoing reasons, we affirm the habeas court’s grant

of relief to Weaver. Due to her trial counsel’s ineffective assistance

of counsel arising from his conflict of interest and her appellate

counsel’s ineffective assistance of counsel arising from his failure to

raise this issue during her direct appeal, the habeas court’s grant of

a new trial is fully supported by the record and the controlling law.

Judgment affirmed. All the Justices concur.