Ezzard Charles Harris v. HAROLD E. CARTER, Warden

*The Honorab le Glen M. W illiams, United States District Judge for
the Western District of Virginia, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0255P (6th Cir.)
File Name: 03a0255p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
EZZARD CHARLES HARRIS,
Petitioner-Appellee,
v.
HAROLD E. CARTER, Warden,
Respondent-Appellant.
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No. 02-3114
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 00-07336—John W. Potter, District Judge.
Argued: June 19, 2003
Decided and Filed: July 29, 2003
Before: KENNEDY and COLE, Circuit Judges;
WILLIAMS, District Judge.*
_________________
COUNSEL
ARGUED: Mark Joseph Zemba, OFFICE OF THE
ATTORNEY GENERAL OF OHIO, CORRECTIONS
2 Harris v. Carter No. 02-3114
LITIGATION, Cleveland, Ohio, for Appellant. Theresa G.
Haire, PUBLIC DEFENDER’S OFFICE, OHIO PUBLIC
DEFENDER COMMISSION, Columbus, Ohio, for Appellee.
ON BRIEF: Mark Joseph Zemba, OFFICE OF THE
ATTORNEY GENERAL OF OHIO, CORRECTIONS
LITIGATION, Cleveland, Ohio, for Appellant. Theresa G.
Haire, PUBLIC DEFENDER’S OFFICE, OHIO PUBLIC
DEFENDER COMMISSION, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
KENNEDY, Circuit Judge. Harold E. Carter, Warden,
appeals the district court’s conditional grant of habeas relief
to Ezzard Harris. The district court granted the petition after
concluding (1) that Harris was presumptively denied his Sixth
Amendment right to effective assistance of counsel when the
state trial court failed to inquire as to whether his counsel had
a conflict of interest after being so advised by counsel, and (2)
that Harris was denied his Sixth Amendment right to effective
assistance of counsel due to defense counsel’s actual conflict
of interest. For the foregoing reasons, we AFFIRM the
district court’s decision to grant the writ.
I.
Ezzard Harris and Kevin Payton were charged in state court
with various offenses arising out of a drive-by shooting
incident in Fremont, Ohio. Harris and Payton were
represented by Attorney George Evans. Evans did not foresee
a conflict of interest when he undertook the joint
representation. Harris and Payton told Evans that neither
would accept a plea bargain in exchange for testimony against
the other. Evans planned a common defense for presentation
at what was expected to be a joint trial. On the day that
Harris and Payton were scheduled for trial, the state trial court
sua sponte ordered Payton to be tried before Harris. Payton

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

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No. 02-3114 Harris v. Carter 5
actual conflict of interest. After the hearing, the district court
granted Harris habeas relief, ordering that he be released from
custody unless granted a new trial within ninety days. The
State filed a timely notice of appeal.
II.
Harris claims that he is entitled to habeas relief on the
ground that his Sixth Amendment right to effective assistance
of counsel was violated due to his lawyer’s conflict of
interest. This Court reviews de novo the district court’s
conclusions of law, including mixed questions of law and
fact, and its findings of fact for clear error. Moss v. Hofbauer,
286 F.3d 851, 858 (6th Cir. 2002). Section 2254(d) of title 28
of the United States Code sets forth the standard for granting
a writ of habeas corpus:
An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
(1) 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) 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.
The parties do not dispute the reasonableness of the facts
determined in the state court proceedings. Thus, to be entitled
to relief under § 2254(d), this Court must find that the
decision of the Ohio Court of Appeals was either contrary to,
or an unreasonable application of, the Supreme Court’s
clearly established precedents. Price v. Vincent, 123 S.Ct.
1848, 1852-53 (2003).
6 Harris v. Carter No. 02-3114
A state court decision is contrary to clearly established
federal law “if the state court arrives at a conclusion opposite
that reached by [the Supreme] Court on a question of law or
if the state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state
court decision is an unreasonable application of clearly
established federal law “if the state court identifies the correct
governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts
of the prisoner’s case.” Id. at 413. The Supreme Court has
cautioned that a “federal habeas court may not issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Id. at 411.
To show a violation of the Sixth Amendment right to
counsel, clearly established Supreme Court precedent requires
a defendant to demonstrate (1) that his or her attorney “made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth
Amendment,” and (2) that the attorney’s deficient
performance was so prejudicial that it “deprive[d] the
defendant of a fair trial, a trial whose result is reliable.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). In the
context of an alleged conflict of interest in representation, the
test for a Sixth Amendment violation has been modified by
clearly established Supreme Court precedent. In cases where
a defendant or defense counsel makes a timely objection to
joint representation based on an asserted conflict of interests
and the trial court fails to inquire as to whether the conflict
warrants the appointment of separate counsel, prejudice is
presumed and reversal is automatic. Holloway v. Arkansas,
435 U.S. 475, 484-88 (1978); see also Cuyler v. Sullivan, 446
U.S. 335, 346 (1980) (“Holloway requires state trial courts to
investigate timely objections to multiple representation.”).
The issue presented to the Holloway Court was whether co-
defendants at trial were denied their Sixth Amendment right

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No. 02-3114 Harris v. Carter 7
to counsel when the co-defendants “made timely motions for
appointment of separate counsel, based on the representations
of their appointed counsel that, because of confidential
information received from the codefendants, he was
confronted with the risk of representing conflicting interests
and could not, therefore, provide effective assistance for each
client.” Id. at 476-77.
In cases where neither the defendant nor defense counsel
makes a timely objection to joint representation, prejudice is
presumed only if the defendant demonstrates on appeal that
“an actual conflict of interest adversely affected his lawyer’s
performance.” Cuyler, 446 U.S. at 348-350; see also Riggs
v. United States, 209 F.3d 828, 831 n.1 (6th Cir. 2000)
(“[T]his [C]ircuit applies the Cuyler analysis to all Sixth
Amendment conflict-of-interest claims. One exception, not
applicable here, is in those cases where the trial court was
informed by counsel or the defendant of a potential conflict
of interest but failed to inquire into that conflict: in such
cases, prejudice is presumed and reversal is automatic.”)
(internal citation omitted). Cuyler generally limits a trial
court’s duty to initiate a conflict of interest inquiry to those
cases in which the trial court either “knows or reasonably
should know that a particular conflict exists.” 446 U.S. at
346-47. The issues presented to the Cuyler Court included
whether “a state trial judge must inquire into the propriety of
multiple representation even though no party lodges an
objection,” and “whether the mere possibility of a conflict of
interest warrants the conclusion that the defendant was
deprived of his right to counsel.” Id. at 345.
Before addressing the state court’s adjudication of Harris’
claim, we note that the district court held that Harris was
entitled to habeas relief because (1) he was entitled to the
presumption of prejudice and automatic reversal under
Holloway, and (2) he was entitled to the presumption of
prejudice and automatic reversal under Cuyler due to Evans’
actual conflict of interest adversely effecting his
representation of Harris. In support of its actual conflict of
8 Harris v. Carter No. 02-3114
interest holding, the district court found that Payton’s
testimony had clearly implicated Harris, that the manner in
which Payton testified was damaging to Harris, and that a
portion of Payton’s testimony implicating Harris conflicted
with the testimony of another prosecution witness. The
district court noted that Evans not only failed to cross-
examine Payton, he also failed to object to a number of
clearly objectionable questions posed by the prosecutor. The
district court credited Evans’ testimony at the evidentiary
hearing that he could not cross-examine Payton because he
feared subjecting Payton to further prosecution, harming
Harris’ defense, and revealing client confidences. For the
reasons discussed below, although not error, it was not
necessary for the district court to find an actual conflict of
interest before presuming prejudice.
On direct appeal, the Ohio Court of Appeals affirmed that
a claim of ineffective assistance of counsel is governed by
Strickland, and recited the required elements. The court
proceeded to review the Supreme Court’s opinions in
Holloway and Cuyler. The court read Holloway as imposing
a duty on a trial court to inquire into whether the risk of a
conflict of interest unconstitutionally endangered a
defendant’s Sixth Amendment right to counsel when counsel
represents multiple defendants at one trial. The court read
Cuyler as imposing a duty on a trial court “to inquire into the
possibility of conflicts of interest posed by multiple
representation only . . . in cases where the trial judge knows
or reasonably should know that a possible conflict of interests
exists.” The court further noted that the Cuyler Court had
observed that “separate trials for . . . co-defendants
significantly reduce[s] the potential for a divergence in their
interests.”
In light of this precedent, the appeals court concluded that
“nothing in the circumstances of this case indicates that the
trial court had a duty to inquire into whether there was a
conflict of interest,” noting that Payton and Harris were tried
separately and that Evans’ role in representing Payton was

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No. 02-3114 Harris v. Carter 9
“all but over” because Payton had been convicted when he
testified at Harris’ trial. We read this holding as finding that
Holloway was inapplicable to this case because Harris and
Payton were not tried jointly and that Cuyler did not impose
a duty to inquire in this case because Harris and Payton’s
separate trials minimized the risk of conflict and Payton had
little need for Evans’ continued representation. Finally, the
appeals court held that even if Harris’ Sixth Amendment
claim was analyzed under the Cuyler actual prejudice
standard, his claim failed because Harris had not
demonstrated, and the court itself could not see, that an actual
conflict of interest had adversely effected Evans’
representation of Harris.
The state appeals court opinion does not mention Evans’
request for the appointment of separate counsel, nor does it
discuss the role that a timely objection or motion for the
appointment of separate counsel plays in the analysis of a
Sixth Amendment claim based on counsel’s representation of
conflicting interests. Because the appeals court concluded
that there was no reason for the trial court to know that a
conflict of interest existed in the joint representation
arrangement, we read the opinion as implicitly finding that
Evans’ request for separate counsel failed to sufficiently
inform the trial court that the joint representation arrangement
posed a conflict of interest now that Payton was required to
testify. The appeals court’s conclusion in this regard is
contrary to the Holloway Court’s holding regarding what
constitutes a sufficient notice to the trial court. In Holloway,
defense counsel was appointed to represent three defendants
at a joint trial. Defense counsel repeatedly objected to the
arrangement prior to trial to no avail. At trial, when each of
the defendants decided to testify against the advice of
counsel, defense counsel again raised an objection to the joint
representation on the ground that confidential
communications with each defendant precluded the attorney
from examining one defendant while protecting the interests
of the other two defendants through cross-examination or
objections to the prosecuting attorney’s cross-examination.
10 Harris v. Carter No. 02-3114
The trial court cursorily rejected the request. In assessing the
sufficiency of defense counsel’s objection to the joint
representation arrangement, the Court dismissed the argument
that defense counsel should have presented its request for the
appointment of separate counsel more vigorously and in
greater detail, noting that the trial court’s response
discouraged the continued pursuit of the request and that a
more detailed presentation of the conflict of interest problem
posed the risk of violating the lawyer’s duty of confidentiality
to his clients. Holloway, 435 U.S.. at 485.
We find that the grounds for Evans’ request for the
appointment of separate counsel should have been apparent to
the state trial court. Evans raised his request twice,
explaining that the appointment of separate counsel was
necessary because he could not effectively protect Payton’s
interests during his testimony against Harris while
simultaneously representing Harris’ interests, given the
confidential communications he had with each man. Because
the objection raised by Evans mirrors that recognized by the
Holloway Court, we find that Evans request sufficiently
informed the trial court of the basis for his objection to his
continued representation of Payton and Harris.
We further note that Evans’ objection was timely despite
the fact that Evans did not raise the conflict of interest issue
until Harris’ trial was underway. As observed in Holloway,
“an ‘attorney representing two defendants in a criminal matter
is in the best position professionally and ethically to
determine when a conflict of interests exists or will probably
develop in the course of trial,’” and “defense attorneys have
an obligation, upon discovering a conflict of interests, to
advise the court at once of the problem.” Id. at 485-86. Thus,
a conflict of interest objection is timely not only when it is
raised before trial, but also when it is raised during the course
of the trial. Id. at 495 n.4 (Powell, J., dissenting). This is
particularly true where, as here, the conflict of interests did
not arise until Payton received immunity and was compelled
to testify. Because the trial court failed to investigate Evans’

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No. 02-3114 Harris v. Carter 11
timely objection, the Ohio Court of Appeals should have
presumed prejudice and automatically reversed Harris’
conviction. Its finding was contrary to clearly established
federal law as stated in Holloway.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
grant of Harris’ petition for habeas relief on the ground that
the decision of the Ohio Court of Appeals is contrary to
Holloway. Harris was presumptively denied his Sixth
Amendment right to counsel when the state trial court failed
to inquire as to whether Evans had a conflict of interest after
being so informed, and therefore is entitled to automatic
reversal of his conviction.

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