Rule 206 ELECTRONIC CITATION: 2004 FED App. 0030P (6th Cir.) File Name: 04a0030p.06… v. Joan Yukins

*The Honorab le John R. Gibson, Circuit Judge of the United S tates
Court of Appeals for the Eighth Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0030P (6th Cir.)
File Name: 04a0030p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
PAULA MCFARLAND,
Petitioner-Appellee,
v.
JOAN YUKINS,
Respondent-Appellant.
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No. 01-1360
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 98-70465—Victoria A. Roberts, District Judge.
Argued: September 19, 2002
Decided and Filed: January 23, 2004
Before: DAUGHTREY, GILMAN, and GIBSON, Circuit
Judges.*
_________________
COUNSEL
ARGUED: Jeffrey W. Caminsky, COUNTY OF WAYNE
PROSECUTOR’S OFFICE, Detroit, Michigan, for Appellant.
2 McFarland v. Yukins No. 01-1360
1The Honorable Victoria A. Roberts, United States District Judge for
the Eastern District of Michigan.
James Krogsrud, Detroit, Michigan, for Appellee.
ON BRIEF: Jeffrey W. Caminsky, COUNTY OF WAYNE
PROSECUTOR’S OFFICE, Detroit, Michigan, for Appellant.
James Krogsrud, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
JOHN R. GIBSON, Circuit Judge. The district court1
granted Paula McFarland a conditional writ of habeas corpus
on the ground that the attorney defending McFarland against
drug charges labored under a conflict of interest because he
also represented her daughter on the same charges. The
Warden appeals the grant of the writ, arguing that McFarland
did not justify her failure to raise the conflict of interest
argument on appeal from the conviction, that the defense
attorney's representation of McFarland and her daughter did
not violate McFarland's Sixth Amendment right to counsel,
and that McFarland received an evidentiary hearing to which
she was not entitled. We affirm the grant of the conditional
writ.
McFarland was charged in Michigan state court with eleven
counts of possession or possession with intent to deliver
various drugs, based on the results of a search on
November 4, 1986, of the house at 15151 Minock in Detroit,
where McFarland and her daughter lived. In a locked
bedroom in the southeast corner of the second floor of the
house, police found the chief incriminating evidence: an
assortment of pills and powders, blank physician's
prescription pads, and physician's ink stamps. Some of the
pills were found in a closet in the southeast bedroom, which
also contained women's clothes; some pills and the

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No. 01-1360 McFarland v. Yukins 3
prescription paraphernalia were found in a file cabinet in the
room; and some pills and packets of powder were found in a
safe in the room. At unspecified locations in the house,
police also found two scales; a sifter that was of the type used
in the cocaine trade and that had residue on it; a prescription
slip for Tylenol 3 made out to Paula McFarland; and tally
sheets containing prices, names, addresses and phone
numbers. They also found $1423 in cash and three guns,
including a homemade .22 caliber made from a pen.
There were four people who could have been linked to the
drugs found in the southeast bedroom. First, the only person
who was actually in the house at the time of the search was a
man, identified as Robert Eaton, who had a key to the front
door, but no key to the locked southeast bedroom.
Second, a man was described in the affidavit supporting the
search warrant as "black male, unknown, Gheri curl, dark
complexion." (Eaton did not match this description.) This
man was seen on the stoop of the house when police were
investigating complaints received from the "Crack Hotline"
about the house at 15151 Minock. The man's identity was not
established during trial. However, during the search of the
locked, southeast bedroom, police found a marriage license
for Donna Ann Reeves and Reginald Leonard Rayford. They
also found a briefcase in the house containing documents
belonging to Reginald Rayford and two letters addressed to
him at 15151 Minock.
Third, McFarland's daughter Donna Reeves lived in the
house. Agent Michael Hawes indicated at Reeves's trial that
the southeast bedroom was Reeves's bedroom. During the
investigation that led to the search, an informant had gone to
the house attempting to buy drugs; the informant reported
speaking to "Donna," who said that she had dilaudids, but that
she would not sell them without seeing a "known face."
Police found documents stored in the dresser in the southeast
bedroom, many of which bore Reeves's name, such as the
marriage license for Reeves and Rayford, a number of
4 McFarland v. Yukins No. 01-1360
receipts for money orders bearing Reeves's name and the
15151 Minock address, and a receipt from the Humane
Society made out to "Donna Rayford." There were women's
clothes in the closet of the southeast bedroom, but there is no
evidence as to what woman they belonged to.
Fourth was petitioner, Paula McFarland. McFarland's name
appeared on many of the documents found in the dresser in
the southeast bedroom, such as money order receipts and a
notice from the Michigan Department of Social Services. Her
name also appeared on a prescription for Tylenol 3 found
somewhere in the house.
McFarland and her daughter hired one lawyer, Leroy
Daggs. At the preliminary hearing in May 1987, counselor
Daggs informed the court that he was representing both
McFarland and Reeves, that he had held discussions with both
of them about the possibility of conflict of interest, and that
they did not anticipate a conflict arising. The court informed
each defendant individually of her right to have separate
counsel appointed, and both defendants stated that they
wished to proceed with Daggs representing them jointly.
On April 5, 1988, the day trial was to begin, the court again
inquired on the record whether there was any conflict of
interest due to Daggs's joint representation of McFarland and
Reeves. Daggs replied first:
I know at the examination I did [represent both
defendants], and I realize now this is probably a little
more–as far as representation is concerned, it would
be–if I were going to make opening statements, I know
I would have to make two or–in closing statements, if I
were, I would have to make two. But I think maybe in
talking with them this morning, I don't think that they
feel very comfortable about the fact that–they've been
talking to outsiders who indicate that I could represent
both of them at trial.

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No. 01-1360 McFarland v. Yukins 5
The court probed: "Are you presenting some defenses here
that may be antagonistic in some kind of way?" Daggs
answered:
See, there were different–I think when the officers
testified, there were different places in the house that
certain things were found. Whether or not there is a
possibility during the course of this trial, if there was–if
those antagonistic defenses as to both of them would
occur–I don't know.
As I said, I've never been in this situation before, your
Honor, where I've had two people at trial time, and I
know that sometimes things can become sticky maybe.
Maybe I would object, maybe the other attorney, if he
represented the other party, maybe would not or maybe
he would and I would not.
I think maybe I could handle it, but again after talking
with them this morning, and the other day by
telephone–this morning out in the hall–they have begun
to raise some problems, your Honor. I think maybe the
Court should more interrogate them as to the particular
issue.
The court commented:
Well, I'm not concerned about any kind of problem
that the defendants are being raised here, you know, in
terms of what–if there's some kind of dissatisfaction. I'm
just concerned about following the procedure on this, and
so far I haven't heard anything that seems to be possibly
antagonistic defenses here.
Despite its impression that Daggs had not established a
conflict, the court inquired of Reeves:
Do you see that there is–that you are raising some issues
or defenses that may be in a sense antagonistic to those
that are raised by Ms. McFarland, or are you aware of
what that might be in any way?
6 McFarland v. Yukins No. 01-1360
In other words, are you–is a part of your defense in this
case, you know, that things that might have been found
didn't belong to you; they might have belonged to
someone else?
Defendant Reeves: Yes.
....
The Court: Okay. And let me understand here what it is
that you are saying, okay? Do you see any problem with
Mr. Daggs representing both you and Ms. McFarland?
And if so, what do you think those problems are?
Defendant Reeves: I think I need another lawyer. He's
good, but I don't think he can handle both of us.
The Court: Why do you think that; that's what I'm
asking.
....
Defendant Reeves: Because I've talked with different
people, and they just said I need a different lawyer.
The court then questioned McFarland:
Without–I'm not asking you to make any kind of a
statement or admissions or anything like that, but do you
perceive it as part of your defense that it maybe
antagonistic in some way to the defense of Ms. Reeves?
Do you understand what I'm saying?
Defendant McFarland: You Honor, I had called another
attorney.
The Court: Pardon me?
Defendant McFarland: I had called another attorney, and
he was too expensive, okay, to represent me, because I
feel like it may come to a point where we do need two
attorneys, and that he was too expensive, so I just had to
leave that alone. But I feel that maybe it's best that we
do need two.
I mean I have no doubt that Mr. Daggs is not a good
attorney, but I think that probably, you know, we need
one each.

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No. 01-1360 McFarland v. Yukins 7
The court expressed its concern that the defendants had taken
no action to ask for appointment of counsel until the day of
trial. As the defendants were prepared to waive their rights to
a jury trial, the court determined that the proper course was to
sever the cases, but proceed to trial with Daggs representing
each defendant in front of different judges.
The Trials
The government's evidence at the respective trials of
Reeves and McFarland differed. At Reeves's trial, the
government introduced the documents that tended to link
Reeves to the southeast bedroom, and at McFarland's trial, it
introduced documents linking McFarland to the room. At
Reeves's trial, Officer Dennis Baaki testified about searching
the southeast bedroom, and he identified Reeves's and
Rayford's marriage license; money orders signed variously by
Reeves, McFarland and a Brenda Retmer; the Humane
Society receipt made out to "Donna Rayford"; a money order
from an insurance company to Reeves; and a "document from
the State of Michigan"–all of which were found on the dresser
in the southeast bedroom. Also at Reeves's trial, Agent
Hawes testified that police had received Crack Hotline
telephone complaints about a "Donna." Hawes also referred
to the southeast bedroom as Reeves's room and the second
bedroom as McFarland's. Daggs argued in Reeves's case,
"[M]ost of these narcotics were taken out of one room and not
out of the other room . . . [N]o one knows exactly which room
Donna Reeves was in because, if it were shown, I mean only
by mail and letters but other things. . . ." Daggs argued that
the narcotics could have belonged to Eaton or the other man
who was not at the house at the time of the search. The judge
trying Reeves found that Eaton did not have a key to the
southeast bedroom and that Reeves was linked to the
bedroom by the documents found there that bore her name.
The judge specifically noted that possession did not have to
be exclusive, but could be joint. The judge found that the
evidence that Reeves had possession and control of the
8 McFarland v. Yukins No. 01-1360
southeast bedroom was sufficient to establish a possessory
interest in the drugs. Accordingly, he found Reeves guilty.
At McFarland's trial, in contrast to Reeves's, when Baaki
testified about the documents found in the southeast bedroom,
he identified a notice addressed to McFarland at 15151
Minock, a receipt signed by McFarland, and 26 receipts for
money orders, of which 23 bore McFarland's name and three
bore the name "Brenda something." He identified no
documents bearing Reeves's name or Reeves's putative
husband's name, nor did Daggs ask him about any such
documents on cross examination. Officer Deborah Steward
identified a prescription slip for Tylenol 3 in the name of
Paula McFarland, but she did not say where the slip was
found. Officer Steward testified that $1423 in cash was found
in the "far bedroom, not the south east bedroom." Steward
stated that the pen gun was found in the southeast bedroom.
When Steward was describing the investigation that led to the
issuance of the search warrant, she did not mention the fact
that the crack hotline telephone complaints named "Donna"
or that the confidential informant had talked to Donna and
Donna had said she had dilaudids. Daggs did not bring out
these facts on cross examination. Agent Michael Hawes
testified that in the second bedroom, which he searched, a
purse was found with the pen gun inside and also with a letter
or card addressed to Paula McFarland. However, in contrast
to his testimony at Reeves's trial, Hawes did not describe the
southeast bedroom as Reeves's and the second bedroom as
McFarland's. Hawes did describe the telephone complaints as
having identified "Donna, no last name, as being the person
who was dealing out of the premises." Daggs did not present
any witnesses for McFarland's case.
At McFarland's trial, Daggs's summation developed the
theory that the narcotics could have belonged to one of the
two men, Robert Eaton or Reginald Rayford, but Daggs never
mentioned the evidence that the locked, southeast bedroom
was Reeves's room. To the contrary, he appeared to concede
that it was McFarland's room:

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No. 01-1360 McFarland v. Yukins 9
So, and we–I'm assuming if we had two men living there
at the same time we had two women they were probably
maybe sharing bedrooms so how can we say that Paula
McFarland would be guilty of possession and control of
narcotics and not the person maybe who was sharing the
bedroom with her. That person could have just as easily
brought those pills in there. The same with Donna
Reeves. Evidently they indicated somewhere in here,
well, maybe that was in the other case. I'm getting
confused, that they introduced a marriage license of–I
don't think it was in this case, I'm not sure but there was
a marriage license showing Donna Reeves was married
to this man Mr. Rayford . . . .
When Daggs touched on the investigation leading to the
issuance of the warrant, Daggs not only failed to point out
that it was Donna Reeves, not McFarland, who engaged in the
conversation about dilaudids with the informant, but he
actually gave the impression that it was McFarland:
Now they couldn't–they weren't successful making any
buys. They says some white lady came to the door, well
so what? . . . But there wasn't any buy made. So how can
you associate either–I mean Miss Paula McFarland with
anything. I mean they haven't, all they have is her name
on something that she lives there. Well, we don't deny
that. But if she's to be charged with this and the other
people who lived there, the two black males, they weren't
charged.
In his summation, the prosecutor reviewed the documentary
evidence with McFarland's name on it found in the southeast
bedroom. He said, "So it's pretty clear to me from that
evidence that the occupants of that bedroom were involved in
the narcotic trade and it's pretty clear Mr. Eaton was excluded
from that [because he had no key to the southeast bedroom]."
(Emphasis added.) The trial court interrupted:
10 McFarland v. Yukins No. 01-1360
You–you would like the Court to conclude from all of
the evidence, including the fact that the pen gun was
found in this defendant's purse, that she was involved or
had constructive possession. I'm going to go back over
the evidence as I recall it, but my recollection is that the
pen gun was found in a purse in a different bedroom
from where the drugs were found?
The prosecutor: I think that's accurate.
The Court: And also that the drugs were found in a
bedroom where there were was [sic] women's clothing
and two women living in the house?
The prosecutor: There's been no direct testimony that
Donna Reeves lived there.
The Court: Okay.
....
The Court: And there was no evidence about what else
was found in the bedroom where the purse was found?
The prosecutor: Correct.
(Emphasis added.)
Later, on April 21, when the trial judge made her findings,
she had apparently forgotten that McFarland's purse was
found by Agent Hawes in the second bedroom; instead, she
relied on the testimony of Officer Deborah Steward, whose
role was not to search the house, but to catalog the evidence
found by the searchers: "[Officer Steward] placed on her
return a home made .22 caliber pen gun found from the purse
taken from the south east bedroom." The trial judge later
made a contradictory finding that Agent Michael Hawes
found the pen gun "in a purse in the upstairs bedroom at the
end of the hall, and there was a letter in that purse and that
letter was addressed to Paula McFarland." The judge found
McFarland guilty, but she remarked:
The only thing that I–I have to tell you this, Mr. Daggs,
in all honesty. I thought about it, I almost was ready to
find not guilty because I did not think at first blemish

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No. 01-1360 McFarland v. Yukins 11
2The record before us does not contain the postconviction motion
itself, but the district court found that the motion attempted to develop the
facts material to the ineffective assistance of counsel claims, and the
W arde n's counsel conceded at a hearing befo re the district court that
that if you had two women living in the house you can
narrow it down but --
Mr. Daggs: That's my thought too.
The Court: I went back over the evidence and I was
convinced beyond a reasonable doubt.
McFarland was convicted on ten of the eleven counts and
sentenced to various concurrent terms, including twenty to
thirty years for possession with intent to deliver 225-650
grams of Oxycodone.
Appeals and State Post-Conviction Proceedings
McFarland and Reeves both appealed to the Michigan
Court of Appeals, and both were represented by Attorney
Robert F. Mitchell. Mitchell raised seven points on appeal,
including a challenge to the sufficiency of the evidence, a
challenge to the sufficiency of the affidavit supporting the
search warrant, and an argument that amendments to the
Michigan Controlled Substance Act should apply
retroactively to McFarland's case. Counsel did not argue that
McFarland had received ineffective assistance of counsel, nor
did he mention the possibility of a conflict of interest. The
Michigan Court of Appeals consolidated Reeves's and
McFarland's cases and affirmed the convictions, but
remanded for resentencing under the amendments to the
Controlled Substance Act. On remand, McFarland's sentence
was reduced from twenty to thirty years to ten to thirty years.
The Michigan Supreme Court denied leave to appeal.
McFarland then filed a motion for postconviction relief in
the Michigan courts, raising the ineffective assistance of trial
counsel and of appellate counsel for failing to argue that trial
counsel was ineffective.2 The motion was denied, as was
12 McFarland v. Yukins No. 01-1360
McFarland had attempted to raise the issue. Transcript of Hearing of
February 15 , 200 1 at 11, 18 . M oreo ver, McFarland's Application for
Leave to Appeal the denial of the postconviction motion shows that
McF arland raised the ineffective assistance of trial counsel, that she
offered the ineffectiveness of appellate counsel as cause for her failure to
raise the argument about trial counsel, and that she sought an evidentiary
hearing.
leave to appeal to the Michigan Court of Appeals and
Michigan Supreme Court, People v. McFarland, 573 N.W.2d
617 (Mich. 1997), on the ground that the claim for relief
could have been raised on appeal and McFarland did not
show good cause for her failure to do so. Michigan Criminal
Rule 6.508(D) forecloses review of claims a defendant could
have, but did not, raise on appeal, unless the defendant shows
cause and prejudice for the default.
Habeas Proceedings
McFarland filed this federal habeas corpus proceeding in
1998, arguing (among other things) that she was entitled to
relief because the trial court failed to inquire into the
possibility of a conflict of interest resulting from trial
counsel's joint representation of Reeves and McFarland; that
trial counsel's conflict of interest adversely affected his
representation of McFarland; that trial counsel's deficient
performance affected the outcome of her trial; and that
appellate counsel was ineffective in failing to raise trial
counsel's deficiencies in McFarland's direct appeal. The
Warden raised the defense that McFarland's procedural
default in failing to raise ineffectiveness of trial counsel on
her direct appeal was an independent and adequate state
ground supporting the state courts' denial of postconviction
relief.
The district court held that "M[ichigan] C[riminal] R[ule]
6.508(D)(3) is not an independent and adequate state rule."
Order of May 11, 1999, slip op. at 10. Therefore, the district
court held that McFarland's failure to raise the ineffective

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No. 01-1360 McFarland v. Yukins 13
assistance of trial counsel on direct appeal presented no
procedural obstacle to reaching the merits on habeas. Id. at
11. On the merits, the district court first held that a defendant
is entitled to relief without proof of prejudice whenever a trial
court "is or should be aware of a potential conflict" of interest
and the court nevertheless fails to take adequate steps to
ascertain whether separate counsel are needed. Id. at 12.
The court held that McFarland was entitled to relief according
to this principle because she objected before trial to having to
share counsel with Reeves and because the trial court should
have known a serious conflict existed after Daggs explained
that the question at trial would be who had possession of
drugs found in different parts of the house. Id. at 13. The
district court held that the trial court's failure to investigate the
conflict and assure that McFarland received assistance of a
lawyer entirely loyal to her violated McFarland's Sixth
Amendment rights. Id. at 13-14. Alternatively, even without
the rule granting relief without a showing of prejudice, the
district court held that McFarland was entitled to relief
because her counsel labored under an actual conflict of
interest adversely affecting his performance. Id. at 16. The
court found that Daggs's decision to present a common
defense seeking to exonerate both Reeves and McFarland
made no strategic sense at all, since Reeves and McFarland
were tried separately. Furthermore, the court found that
Daggs's failure to introduce any evidence pointing to Reeves's
possession of the drugs, even the mere fact that Reeves lived
in the house, showed that his representation of McFarland
was adversely affected by his loyalty to Reeves. Id. at 17.
The court therefore granted McFarland the writ conditionally,
allowing the state the option of affording her a new trial
within ninety days of the decision. Id. at 19.
We reversed because the district court's procedural ruling
was incorrect. McFarland v. Yukins, No. 99-1659, 2000 WL
1290125 (6th Cir. Sept. 5, 2000) (unpublished). We
determined that the procedural default cited by Michigan
courts was an independent and adequate state ground, so it
would be necessary for the district court to ascertain whether
14 McFarland v. Yukins No. 01-1360
McFarland had shown cause and prejudice excusing her
failure to raise the conflict of interest argument on appeal
from the conviction. Id. at *3.
The cause and prejudice McFarland offered to excuse her
default was ineffective assistance of appellate counsel in
failing to argue the ineffective assistance of trial counsel. Her
claim of ineffectiveness of appellate counsel rested on two
theories: first, appellate counsel had also labored under a
conflict of interest because he represented both McFarland
and Reeves, and second, appellate counsel had simply failed
to raise her strongest argument, which showed that he made
an unreasonable error and that the error caused her to lose her
appeal.
The district court held an evidentiary hearing at which
McFarland called appellate counsel, who testified to almost
nothing of usefulness to either side because he had
relinquished his files to Reeves and he had no independent
recollection of what he had done in the case or why he had
done it.
Nevertheless, the district court found that appellate
counsel's assistance had indeed been ineffective because he
had unreasonably failed to raise the trial counsel's conflict of
interest and, had he done so, McFarland would have won her
appeal. Order of February 22, 2001, slip op. at 11-12.
Therefore, the district court held that McFarland's failure to
raise the issue on appeal had been excused and the court was
authorized to reach the merits, as it had done in its first order
granting the writ. The court reaffirmed its earlier order
granting McFarland a conditional writ of habeas corpus. Id.
at 13.
On appeal, the Warden argues that McFarland should not
have been allowed to have the evidentiary hearing at which
she tried to prove that her appellate counsel's ineffectiveness
caused her to default her claim of trial counsel's
ineffectiveness. The Warden also argues that the appellate

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No. 01-1360 McFarland v. Yukins 15
counsel's representation of McFarland was not ineffective
because even if counsel had raised her claim about her trial
counsel, McFarland would not have won her appeal on that
claim. Finally, the Warden argues that the trial counsel's
representation was not affected by an actual conflict of
interest and that the trial court had no obligation to do
anything more than it did to safeguard McFarland's right to
effective counsel.
I.
We review the district court's legal conclusions de novo and
its factual findings for clear error. Lucas v. O'Dea, 179 F.3d
412, 416 (6th Cir. 1999). McFarland's ineffective assistance
of counsel claim presents a mixed question of fact and law,
which is therefore subject to de novo review. Id. The district
court's determinations of questions of procedural default and
cause and prejudice are also subject to de novo review. Id.
Logically, we must decide the procedural question of
whether McFarland is entitled to pursue her claim of
ineffective assistance of trial counsel before we reach the
merits of that claim. However, the nature of the procedural
arguments in this case requires us to decide at the outset
whether that underlying claim has merit, as we will explain.
The Warden argues that McFarland is not entitled to raise
trial counsel's effectiveness on federal habeas because she
neglected to raise the claim on her direct appeal, as required
by state procedural rules. McFarland's answer to the
Warden's procedural defense is that her claim of trial
counsel's ineffectiveness was so strong that her appellate
counsel's failure to raise it shows she also received ineffective
assistance of counsel on her state appeal. Ineffective
assistance of counsel can supply the cause that, together with
prejudice, would excuse a procedural default. Murray v.
Carrier, 477 U.S. 478, 488 (1986). In order to show
ineffective assistance of counsel excusing a procedural
default, it is first necessary to establish that the defendant had
16 McFarland v. Yukins No. 01-1360
a constitutional right to counsel at the procedural stage at
which the alleged attorney error occurred. Coleman v.
Thompson, 501 U.S. 722, 752 (1991). The failure to raise
ineffectiveness of trial counsel occurred on McFarland's first
appeal of right, at which stage she enjoyed a constitutional
right to counsel. Evitts v. Lucey, 469 U.S. 387, 396 (1985).
McFarland must show that her appellate counsel's failure to
raise the ineffectiveness of trial counsel rose to the level of a
constitutional violation under Strickland v. Washington, 466
U.S. 668 (1984). According to Strickland, a defendant's Sixth
Amendment rights are violated if (1) the defendant's attorney
commits an error "so serious that counsel was not functioning
as the 'counsel' guaranteed the defendant by the Sixth
Amendment," id. at 687, and (2) counsel's deficiency so
prejudiced the defense that there is a reasonable probability
that, but for counsel's performance, the result of the
proceeding would have been different, id. at 694. Counsel's
failure to raise an issue on appeal could only be ineffective
assistance if there is a reasonable probability that inclusion of
the issue would have changed the result of the appeal. See
Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001), cert.
denied, 535 U.S. 940 (2002). Thus, in order to decide
whether McFarland can present her claim of ineffective
assistance of trial counsel, we have to decide whether there is
a reasonable probability that the claim would have prevailed
at the time counsel failed to raise it. Cf. Lucas, 179 F.3d at
420 (counsel could be ineffective for failing to raise argument
that would have been overruled at the time it was omitted, if
a change in law was foreshadowed). We consider this
question in section II, infra.
If there is a reasonable probability that McFarland would
have prevailed on appeal had the claim been raised, we can
then consider whether the claim's merit was so compelling
that appellate counsel's failure to raise it amounted to
ineffective assistance of appellate counsel that would excuse
McFarland's procedural default. See Section III, infra. Along
the way, we must decide whether the district court erred in

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No. 01-1360 McFarland v. Yukins 17
allowing McFarland the evidentiary hearing at which
appellate counsel was questioned about how he selected the
issues to be raised on appeal. See Section IV, infra.
If ineffective assistance of appellate counsel excused the
failure to raise ineffectiveness of trial counsel on appeal and
if trial counsel was constitutionally ineffective, our inquiry is
still not concluded. Because McFarland's habeas claim is
governed by the Antiterrorism and Effective Death Penalty
Act, Pub. L. No. 104-132, Tit. I, § 104, 110 Stat. 1218 (1996),
known as the AEDPA, if her claim of ineffective assistance
of trial counsel was adjudicated on the merits in state court,
she can only receive federal habeas relief if the state
adjudication of her claim was contrary to or involved an
unreasonable application of clearly established federal law
embodied in decisions of the Supreme Court or else the state
adjudication involved an unreasonable determination of the
facts. 28 U.S.C. § 2254(d) (2000). We consider the
application of the AEDPA standard to McFarland’s case in
Section V, infra.
II.
The Sixth Amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” At the time of
McFarland's appeal from her conviction in 1988-89, there
were three possible routes to establishing that her trial counsel
provided ineffective assistance violating her Sixth
Amendment right to counsel. To determine whether appellate
counsel's assistance was ineffective, we must first ascertain
whether there is a reasonable probability that McFarland
would have won her appeal on any of these three theories.
A.
Under the rule of Holloway v. Arkansas, 435 U.S. 475
(1978), when a defendant or his counsel voices a timely
objection to joint representation of clients with antagonistic
18 McFarland v. Yukins No. 01-1360
interests and the trial court fails to investigate the conflict, a
defendant is entitled to automatic reversal without
demonstration of prejudice. Harris v. Carter, 337 F.3d 758,
761 (6th Cir. 2003). The reason for this automatic reversal
rule is that "[j]oint representation of conflicting interests is
suspect because of what it tends to prevent the attorney from
doing." Holloway, 435 U.S. at 489-90. The record will
ordinarily not memorialize mistakes of omission as it does
affirmative instances of trial error, id. at 490-91, so for courts
to evaluate the existence and effect of such omissions would
entail "unguided speculation." Id. at 491. Moreover,
“counsel’s conflicting obligations to multiple defendants
‘effectively sea[l] his lips on crucial matters,’” thus
preventing counsel from making an adequate record to
establish prejudice. Mickens v. Taylor, 535 U.S. 162, 168
(2002) (quoting Holloway, 435 U.S. at 489-90). Although
this evidentiary concern exists whenever counsel is subject to
divided loyalty, the Holloway automatic-reversal rule does
not apply to every such case; instead, it is limited to situations
where "defense counsel is forced to represent codefendants
over his timely objection, unless the trial court has determined
that there is no conflict." Mickens, 535 U.S. at 168.
Sometimes defendants prefer joint representation, even if
there is the possibility of a conflict. See Wheat v. United
States, 486 U.S. 153, 159 (1988); Serra v. Mich. Dept. of
Corrections, 4 F.3d 1348, 1350-54 (6th Cir. 1993). Limiting
the Holloway automatic-reversal rule to cases in which a
defendant has timely objected to the conflict recognizes that
defendants have a countervailing interest in being allowed to
proceed with counsel of their own choice, while also ensuring
that the defendant cannot have it both ways by asking for
reversal or habeas corpus on the basis of representation that
he or she acceded to during trial. See Smith v. Anderson, 689
F.2d 59, 64-65 (6th Cir. 1982) ("Because certain benefits of
a single defense counsel may be imagined, a different and
more searching review [than that prescribed in Holloway] is
mandated when the defense is silent until the appropriate
occasions for objecting have passed." (citations omitted)).

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No. 01-1360 McFarland v. Yukins 19
3At this stage in our analysis, we examine the merits of the
ineffectiveness-of-trial-counsel-issue only to decide if appellate counsel
ought to have raised that issue on direct appeal. We recognize that new
law made in cases decided after the 1988-89 period during which
McFarland's appeal was pending is not relevant to the question of whether
McFarland's appellate counsel should have m ade a certain argument in her
appeal in 198 8-89 . But see Lucas v. O'Dea, 179 F.3d 41 2, 420 (6th Cir.
1999) (taking into account future developments that were foreshadowed
at time of representation). W e cite later-decid ed ca ses only for their
assistance in analyzing the law as it existed in 19 88-8 9.
McFarland's case presented the factors that make it
obligatory under Holloway for the trial court to investigate.
First, Daggs's representation of Reeves and McFarland was
the kind of joint representation covered by the Holloway rule.
We have distinguished among the different situations in
which a lawyer's representation of various clients
compromises his duty of loyalty: "joint and dual
representation refer to simultaneous representation occurring
in the same proceeding, while multiple representation refers
to simultaneous representation in separate proceedings."
United States v. Moss, 323 F.3d 445, 456 n.15 (6th Cir.), cert.
denied, 124 S. Ct. 303 (2003).3 "Successive representation
occurs where defense counsel has previously represented a
co-defendant or trial witness." Id. at 459. In Mickens, the
Supreme Court recently noted it has never applied the
heightened protections from its conflict of interest
jurisprudence to cases of successive representation. 535 U.S.
at 176 (discussed in Smith v. Hofbauer, 312 F.3d 809, 816
(6th Cir. 2002), cert. denied, 124 S. Ct. 441 (2003)).
20 McFarland v. Yukins No. 01-1360
This court recently affirmed the grant of habeas under the
Holloway rule in Harris v. Carter, 337 F.3d 758 (6th Cir.
2003), a case in which one lawyer, Evans, represented both
the petitioner, Harris, and a co-defendant, Payton, who was
called as a witness and incriminated Harris at trial. Harris's
and Payton's cases were originally joined for trial, but the trial
court severed them, sua sponte, on the day of trial. Payton
had already been convicted, but not sentenced, when Harris's
trial began. Id. at 759. When Evans learned that Payton
would be called to testify at Harris's trial, he asked that
Payton be appointed separate counsel. Id. at 759-60. The
trial court denied the request and forced counsel to proceed.
The state courts held that "Holloway was inapplicable to
[Harris's] case because Harris and Payton were not tried
jointly and . . . because Harris and Payton's separate trials
minimized the risk of conflict and Payton had little need for
Evans' continued representation." Id. at 763. We disagreed.
We held that the state decision condoning the joint
representation over the petitioner's objection without inquiry
by the trial court was contrary to Holloway, even though the
lawyer's two clients were not tried together. Id. at 764.
At the time the trial court ruled on the Holloway issue,
Daggs was representing two co-defendants joined for trial.
This is the prototypic Holloway situation and so passes the
threshold of eligibility for the Holloway rule. Whether the
severance on the day of trial fulfilled the trial court's
obligation under Holloway is discussed below.

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No. 01-1360 McFarland v. Yukins 21
4This Circuit has interpreted Holloway to apply when "a defendant
or defense counsel makes a timely objection to joint representation based
on an asserted conflict of interests." Ha rris, 337 F.3d at 761 (em phasis
added); Mo ss, 323 F.3d at 455 ("Indeed, where the defen dan t or his
counsel objects to the conflict prior to, or during trial, the trial court must
inquire as to the extent of the conflict or subject any subsequent
conviction to automatic re versal."); Sm ith, 689 F.2d at 65 ("W hen the
defendant, individually or through his legal representative, fails to raise
his concern for a conflict in a timely fashion," an actual conflict of interest
must be established to warrant relief). W e are aware of a district court
holding that the rule in Holloway does not ap ply when a defendant
himself, rather than his co unsel, objects to the multiple representation.
Riley v. South Carolina, 82 F. Supp. 2d 474 , 481 (D.S .C.), appeal
dismissed, 225 F.3d 655, 2000 WL 1009026 (4th Cir. 2000)
(unpublished). It makes little sense to deny effect to the objection of the
defendant where his counsel was negligent or worse in tolerating a
conflict of interest. However, we need no t plumb the depths of this issue,
since Daggs himself brought the conflict issue to the trial court's attention
and the defendants then elaborated on the issue first raised by counsel.
Second, McFarland voiced an objection4 to having to share
an attorney with Reeves. In Mickens, the Supreme Court
interpreted Holloway as applying only where there has been
a timely objection to conflicting representation. 535 U.S. at
168. In this case, Daggs initially informed the trial court that
his clients were uncomfortable with him representing both of
them at trial. The court asked whether there would be
antagonistic defenses. Daggs's response was equivocal, but
he did point, albeit cryptically, to the issue of who possessed
the drugs based on the location of the drugs in the house:
"See, there were different–I think when the officers testified,
there were different places in the house that certain things
were found. Whether or not there is a possibility during the
course of this trial, if there was–if those antagonistic defenses
as to both of them would occur–I don't know."
After hearing from Daggs, the court inquired of Reeves and
McFarland individually whether they thought there was a
conflict. Both stated that they wanted separate lawyers.
Moreover, McFarland stated that she had tried to hire separate
counsel and could not afford to do so. Reeves confirmed that
22 McFarland v. Yukins No. 01-1360
the question of who in the house possessed the drugs was the
source of a conflict. The court asked: "[I]s a part of your
defense in this case, you know, that things that might have
been found didn't belong to you; they might have belonged to
someone else?" Reeves answered: "Yes."
A mother and daughter were charged with possession of
drugs found in the house where both were living. They
indicated that they would defend themselves on the theory
that "someone else" owned the drugs and that they did not
want to be represented by the same lawyer at trial. This is
clear notice to the court of a concrete conflict of interest,
sufficient to bring the case within the Holloway rule.
Holloway does not require counsel to disclose trial strategy or
to breach his duty of loyalty to either client in order to
substantiate the existence of a conflict, United States ex rel.
Zembowski v. Robertis, 771 F.2d 1057, 1063 (7th Cir. 1985),
as Daggs would have done had he suggested to the court
before which both Reeves's and McFarland's cases were then
pending that it was Reeves's room where the drugs were
found. See Smith, 689 F.2d at 64 n. 5 ("[W]e need only note
the thorny issues raised by a judge's inquiry of counsel
pertaining to concerns and problems in his defenses,
especially since the judge may be the trier of fact and may
impose sentence upon his clients if conviction results.").
Third, the objection was timely. McFarland's objection
came before the beginning of trial. "[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." Harris,
337 F.3d at 764 (citing Holloway, 435 U.S. at 495 n.4
(Powell, J., dissenting)); accord Smith, 689 F.2d at 62
(lawyer's objection on day of trial timely under Holloway
where government moved to consolidate two cases at last
moment); United States ex rel. Ballard v. Bengston, 702 F.2d
656, 663 (7th Cir. 1983) (motion one week before trial
timely). Holloway specifically preserves the trial court’s
power to deal with defendants who make untimely motions
for separate counsel in order to cause delay. 435 U.S. at 486-

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No. 01-1360 McFarland v. Yukins 23
87. However, courts interpreting Holloway have recognized
that the existence and extent of a conflict may only become
clear as events unfold. Trial courts may not rigidly insist on
objection a certain amount of time before trial when
circumstances have prevented counsel or the defendant from
speaking up earlier. See Harris, 337 F.3d at 764; Smith, 689
F.2d at 62; Bengston, 702 F.2d at 663. McFarland attempted
to explain to the trial court the reason for her delay in
objecting–that she had tried to hire a separate attorney, but
had not had enough money. The trial court did not reject this
explanation, but instead severed the cases for trial.
The Warden contends that McFarland's objection was
untimely and therefore "forfeit[ed] as a matter of state law,"
citing People v. Jones, 423 N.W.2d 614 (Mich. Ct. App.
1988). Jones does not involve a conflict of interest and
merely concludes that Jones's request for substitute counsel
was untimely, without even revealing when the motion was
made. Even if Jones gave us a state timeliness rule we could
apply, which it does not, Jones does not purport to interpret
the requirements of federal law as set forth in Holloway,
which is the relevant question.
The question remains as to whether the trial court
discharged its duty under Holloway by its inquiry and by
severing Reeves's and McFarland's cases. The various
Circuits have somewhat different views concerning the nature
and extent of the trial court's duty under Holloway. In
Holloway the trial court violated the defendants' rights when,
after timely objection by defendants' counsel, "[t]he judge
then failed either to appoint separate counsel or to take
adequate steps to ascertain whether the risk was too remote to
warrant separate counsel." 435 U.S. at 484. The Tenth
Circuit has held that this language outlines a duty (1) to
obviate the risk by substituting conflict-free counsel or
allowing the defendant to waive the conflict, or (2) to
affirmatively establish that there is no conflict. See United
States v. Gallegos, 108 F.3d 1272, 1282 (10th Cir. 1997).
The Second Circuit has held that the trial court's duty under
24 McFarland v. Yukins No. 01-1360
Holloway is limited to the duty to inquire about the conflict,
and that once inquiry has shown a possible conflict exists, the
duty to rectify the situation is judged under the actual conflict
standard, rather than the automatic-reversal rule of Holloway.
United States v. Levy, 25 F.3d 146, 154 (2d Cir. 1994). It
makes little sense to say that the burden of proving a Sixth
Amendment violation increases as soon as the trial court's
inquiry shows that a possible conflict exists, even though the
court fails to respond appropriately to the conflict. The Tenth
Circuit has reasoned that unless the trial court's duty upon
timely objection "encompasses a sound resolution of the
conflict problem," the "inquiry mandated by Holloway would
be an empty ritual." Selsor v. Kaiser, 81 F.3d 1492, 1503
(10th Cir. 1996). We view the Tenth Circuit's position as
more consistent with Holloway, and accordingly we look to
see whether the trial court affirmatively obviated the conflict
by its response of severing the trials.
The Supreme Court has observed that providing separate
trials significantly reduces the potential for conflict of interest
from joint representation. See Burger v. Kemp, 483 U.S. 776,
784 (1987) (quoting Cuyler v. Sullivan, 446 U.S. 335, 347
(1980)). Here, though the trials were separate, Daggs was
still actively involved in Reeves's trial when he tried
McFarland's case. Reeves and McFarland were tried before
different judges, beginning on April 5-6 and April 7, 1988,
respectively. Both trials were continued after the presentation
of several witnesses, to wait for Agent Hawes, who was
unavailable when the trials started and who testified on
April 11 in both cases. The April 11 hearing in McFarland's
case began at 8:50 a.m. and ended at 9:25 a.m. The last
evidence and arguments in Reeves's case also occurred on
April 11, 1988, but no time of day is noted. Since Daggs was
present at both hearings that day, we can infer that
McFarland's happened first. McFarland's trial was then
continued to April 21, when the court made its findings.
Thus, Daggs was still actively involved in representing
Reeves during McFarland's trial. Though his actions in
McFarland's case were not automatically before the trier of

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No. 01-1360 McFarland v. Yukins 25
fact in Reeves's case as they would have been in a joint trial,
still any evidence or argumentation he developed against
Reeves would instantly be made available to the prosecutor
for use in Reeves's case. For instance, although in hindsight
we know that Hawes would suggest in Reeves's case that the
southeast bedroom was Reeves's, Daggs did not have the
luxury of knowing that in advance. If he had brought this out
in cross-examination in McFarland's case, for all he knew he
might have been developing evidence the prosecutor had not
yet seized on, which might have helped convict Reeves.
In Harris v. Carter, we held that severance did not obviate
the conflict, even though Payton, one of the lawyer's two
clients, had already been tried when he was called as a
witness in Harris's case. Had the lawyer shown that Payton
was lying at Harris's trial, he would have exposed Payton to
perjury charges and revealed confidences from Payton. 337
F.3d at 762. The lawyer's continuing duty to Payton hobbled
him in discharging his duty to Harris, and the trial court was
bound under Holloway to recognize the lawyer's objection
and look into the conflict the lawyer pointed out. Id. at 764.
Similarly, in this case, had Daggs attempted to exonerate
McFarland by showing that Reeves controlled the southeast
bedroom, he would have compromised his duty to Reeves.
The Warden relies on United States v. Mavrick, 601 F.2d
921 (7th Cir. 1979), for the proposition that severance of
McFarland's and Reeves's trials cured the conflict and
rendered Holloway inapplicable. But in Mavrick, the
defendants did not object to the conflict of interest, and when
the trial court brought up the subject, counsel reported that the
defendants did not want to be represented by separate counsel
and that severance of their trials would eliminate the conflict.
Id. at 928-30. As the Seventh Circuit noted, "[T]he events
occurring prior to trial are almost exactly the opposite of
those that triggered the trial court's duty of inquiry in
Holloway." Id. at 930. The crucial event activating the
Holloway rule, timely objection, was lacking in Mavrick,
where the defendants resisted appointment of separate counsel
26 McFarland v. Yukins No. 01-1360
and counsel represented to the court that severance would
eliminate any conflict. Accord Wilson v. Morris, 724 F.2d
591, 594 (7th Cir. 1984) (en banc) (counsel did not object
except to refer to "potential conflict which could arise," but
which would be remedied by severance; cases severed for
trial, and Holloway not applicable). In contrast to Mavrick,
McFarland objected to the multiple representation, and she
certainly did not lead the court to believe that she considered
her objection obviated by the severance.
We conclude that if McFarland's appellate counsel had
raised the issue of trial counsel's conflict of interest in
McFarland's state appeal, McFarland's conviction would have
been reversed under the Holloway automatic-reversal rule.
B.
Under the rule of Cuyler v. Sullivan, 446 U.S. 335 (1980),
when an attorney's representation of multiple defendants,
though not objected to at trial, results in an actual conflict of
interest that adversely affects the attorney's performance, the
defendants' Sixth Amendment rights have been violated, even
without a showing that the conflict caused the defendant to
lose his or her case. Id. at 349-50 ("Thus, a defendant who
shows that a conflict of interest actually affected the adequacy
of his representation need not demonstrate prejudice in order
to obtain relief.").
We have historically characterized Sullivan as requiring
both "actual conflict" and "effect on representation" to
establish a violation of the Sixth Amendment. Thomas v.
Foltz, 818 F.2d 476, 481-82 (6th Cir. 1987). To prove that
counsel’s performance was affected by an "actual conflict,"
McFarland would have had to show that Daggs "made a
choice between possible alternative courses of action, such as
eliciting (or failing to elicit) evidence helpful to one client but
harmful to the other." Id. at 481 (quoting United States v.
Mers, 701 F.2d 1321, 1328 (11th Cir. 1983)). “Effect on
representation” meant that the conflict caused the attorney’s

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No. 01-1360 McFarland v. Yukins 27
choice, not that the choice was prejudicial in any other way.
Id. at 483. In Mickens v. Taylor, 535 U.S. 162, 172 n. 5
(2002), the Supreme Court modified this test by putting both
the cause and effect elements into the phrase "actual conflict":
[T]he Sullivan standard is not properly read as requiring
inquiry into actual conflict as something separate and
apart from adverse effect. An "actual conflict," for Sixth
Amendment purposes, is a conflict of interest that
adversely affects counsel's performance.
Mickens changed the terminology, but not the substance of
the test we had applied previously, since the standard still
requires a choice by counsel, caused by the conflict of
interest. See Moss v. United States, 323 F.3d 445, 466-67 &
n.23, 469 (6th Cir.), cert. denied, 124 S. Ct. 303 (2003).
Although the choice caused by the conflict does not have to
be prejudicial in the sense of causing the defendant to lose the
case, Thomas, 818 F.2d at 483, the reasonableness of
counsel’s choice can be relevant as a factor in proving the
choice was caused by the conflict. A defendant or habeas
petitioner does not have to produce direct evidence, such as
the lawyer's testimony, that the lawyer chose to do one thing
rather than another in order to accommodate another client's
interests. Causation can be proved circumstantially, through
evidence that the lawyer did something detrimental or failed
to do something advantageous to one client that protected
another client's interests. "[B]oth taking action and failing to
take actions that are clearly suggested by the circumstances
can indicate an adverse effect." Mickens v. Taylor, 240 F.3d
348, 360 (4th Cir. 2001) (en banc) (quotation marks omitted),
aff’d, 535 U.S. 162 (2002). “[T]he existence of an actual
conflict and adverse effects from it are more likely to be
evident in cases in which an attorney takes positive steps on
behalf of one client prejudicial to another than in cases in
which the attorney’s actions are based on inaction and are
passive . . . .” United States v. Gambino, 864 F.2d 1064,
1070 (3d Cir. 1988).
28 McFarland v. Yukins No. 01-1360
There has been some difference in opinion among the
Circuits about when foregoing an available defense because
of a conflict of interest constitutes evidence of "adverse
effect." Some Circuits hold that whenever counsel failed to
pursue a "plausible" defense “that was inherently in conflict
with or not undertaken due to the attorney’s other loyalties,”
there is sufficient evidence of adverse effect to show a Sixth
Amendment violation. Winkler v. Keane, 7 F.3d 304, 309 (2d
Cir. 1993); Gambino, 864 F.2d at 1070; United States v.
Fahey, 769 F.2d 829, 836 (1st Cir. 1985). Other Circuits also
require that the foregone defense be "reasonable." Freund v.
Butterworth, 165 F.3d 839, 860 (11th Cir. 1999) (en banc)
(showing of adverse effect requires proof of tactic foregone,
of reasonableness of tactic on facts, and of a causal link
between conflict and decision to forego tactic); Mickens, 240
F.3d at 361 (same).
This Circuit has been quite rigorous in demanding more
than omission of a hypothetical or "potential" defense to
establish adverse effect. See O'Guin v. Foltz, 715 F.2d 397,
400-01 (6th Cir. 1983). Under our cases, counsel’s choice to
forego a defense that would have been inconsistent with
counsel's duty to another client is evidence of adverse effect
only if it is clear that the choice was not part of a legitimate
strategy, judged under the deferential review of counsel’s
performance prescribed in Strickland v. Washington, 466 U.S.
668 (1984). In United States v. Mays, 77 F.3d 906, 908 (6th
Cir. 1996), we rejected an argument that a conflict caused a
lawyer's actions where "arguably unwise questions by defense
counsel of prosecution witnesses appear to have been part of
a losing strategy but they were not the result of choices made
where there were clearly better alternatives." (Emphasis
added.) In Riggs v. United States, 209 F.3d 828, 833 (6th Cir.
2000), there was no proof of adverse effect where counsel
failed to request an instruction to which the defendant would
have had no right. Even where the lawyer omitted some
course of action that undoubtedly would have been
advantageous to the defendant, there is no proof of adverse
effect if there is some other adequate explanation for the

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No. 01-1360 McFarland v. Yukins 29
omission, see Moss v. United States, 323 F.3d 445, 470 (6th
Cir.) (lack of plea negotiations resulted from defendant’s
protestations of innocence), cert. denied, 124 S Ct. 303
(2003), or if the lawyer was ignorant of the facts giving rise
to the conflict, United States v. Hopkins, 43 F.3d 1116, 1118-
19 (6th Cir. 1995). These cases are consistent with the
Supreme Court’s methodology in Burger v. Kemp, 483 U.S.
776 (1987). There, counsel’s omission of a defense pointing
the finger at another person was not evidence counsel was
motivated by loyalty to the other person, since the decision
had a “sound strategic basis.” Id. at 784.
On the other hand, where counsel's choices worked to the
defendant's detriment but to the benefit of another client, and
there was no other explanation for counsel's choices, we have
considered the choices themselves evidence of disloyalty. For
instance, in United States v. Boling, 869 F.2d 965, 972 (6th
Cir. 1989), the defendant's counsel also represented a co-
defendant to some extent in a related matter, and had
represented the co-defendant in the past. Counsel pursued a
"common defense" strategy, which resulted in failing to call
witnesses favorable to the defendant and unfavorable to the
co-defendant and failing to cross-examine the co-defendant.
We held the strategy was "unquestionably . . . very harmful"
to the defendant and constituted a violation of her Sixth
Amendment rights. Similarly, in United States v. Hall, 200
F.3d 962, 966-67 (6th Cir. 2000), we held that counsel's
actions were affected by a conflict when he failed to point out
that there was virtually no evidence linking one of his clients
to cocaine, and the only evidence supporting the conviction
resulted from defendant's answer to a poorly phrased
question, to which counsel should have objected.
Thus, where counsel fails to pursue a strong and obvious
defense, when pursuit of that defense would have inculpated
counsel's other client, and where there is no countervailing
benefit to the defendant from foregoing that defense or other
explanation for counsel’s conduct, these facts amount to
evidence of disloyalty under any interpretation of Sullivan.
30 McFarland v. Yukins No. 01-1360
See Lockhart v. Terhune, 250 F.3d 1223, 1230-32 (9th Cir.
2001) (adverse effect found where petitioner’s trial counsel
also represented another person implicated in a killing;
counsel failed to make use of “obvious defense” that other
client was the killer and Ninth Circuit could “discern no
tactical justification” for counsel’s decision); Griffin v.
McVicar, 84 F.3d 880, 886-91 (7th Cir. 1996) (actual conflict
where counsel presenting joint defense failed to present best
defense that petitioner’s co-defendant, rather than petitioner,
shot victim); United States v. Romero, 780 F.2d 981, 986-87
(11th Cir. 1986) (actual conflict where defendant's "status as
a low level employee [in drug operation] made a shifting
blame defense extremely feasible and . . . such a defense was
completely foreclosed to him because it would have
implicated his codefendant and another client of his
attorney."); United States v. Levy, 25 F.3d 146, 157-58 (2d
Cir. 1994) (actual conflict where attorney forewent plausible
strategy of blaming another of attorney's clients); Fitzgerald
v. United States, 530 A.2d 1129, 1138-41 (D.C. Ct. App.
1987) (where guns and drugs found in various rooms of
house, joint representation led to actual conflict preventing
family members from arguing that other members possessed
contraband).
The record shows that McFarland's best defense would
have been to contend that the drugs belonged to Reeves and
not to McFarland. Under Michigan law, in order to convict
McFarland of possession of the drugs, the State had to prove
that she exercised control or had the right to exercise control
over them. People v. Konrad, 536 N.W. 2d 517, 521 (Mich.
1995); People v. Davenport, 197 N.W. 2d 521, 523-24 (Mich.
Ct. App. 1972), disapproved on other grounds, People v.
Nash, 313 N.W.2d 307 (Mich. Ct. App. 1981). There was
strong evidence indicating that Reeves, not McFarland,
controlled the drugs found in the locked southeast bedroom.
Agent Michael Hawes said that police had received Crack
Hotline telephone complaints about "Donna," and during the
investigation that led to the search, the confidential informant
had talked to "Donna," who confirmed that she had dilaudids,

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No. 01-1360 McFarland v. Yukins 31
but would not sell them to someone she did not know. The
southeast bedroom contained items that could have been
linked either to Reeves or McFarland, such as women's
clothing and mail, money order receipts, and other documents
with Reeves's or McFarland's name. Agent Hawes referred
to the southeast bedroom as Reeves's room, and he referred to
the second bedroom as McFarland's. Agent Hawes said the
purse with the pen gun and the letter or card addressed to
McFarland was found in the second bedroom, not the
bedroom with the drugs and prescription forms.
In McFarland's trial, Daggs not only failed to argue that
Reeves was guilty, but he affirmatively argued that she was
innocent. He argued in closing, "There's been no showing
here by the prosecution that either Paula McFarland or Donna
Reeves . . . had possession or control of any narcotic . . . ." In
presenting the joint defense, he neglected to point out that the
southeast bedroom appeared to be Reeves's room and even
seemed to concede that it was McFarland’s room:
I'm assuming if we had two men living there at the same
time we had two women they were probably maybe
sharing bedrooms so how can we say that Paula
McFarland would be guilty of possession and control of
narcotics and not the person maybe who was sharing the
bedroom with her. That person could have just as easily
bought [sic] those pills in there. The same with Donna
Reeves.
The burden of exculpating Reeves during McFarland's trial
caused Daggs to make implausible arguments that would not
have been necessary had he been defending McFarland alone.
For instance, Daggs addressed the report by the confidential
informant about trying to buy drugs at the house:
They says some white lady came to the door, well so
what? You knock on my door I'm going to probably
come to the door, too. . . . But there wasn't any buy
32 McFarland v. Yukins No. 01-1360
made. So how can you associate either–I mean Miss
Paula McFarland with anything.
Daggs left the impression that it might have been McFarland
who talked to the confidential informant and that he had to
discredit the confidential informant's report to defend
McFarland, when it was Reeves who was implicated by the
informant. He argued that neither of the women was involved
with the drugs, even though there were women's clothes in the
closet in the southeast bedroom; while it was plausible that
one woman in the house was innocent of involvement with
the drugs, it was far less plausible that both were. Daggs thus
took on a heavier burden than would have been necessary in
defending McFarland alone. See Griffin, 84 F.3d at 890
(habeas granted where counsel presenting joint defense
pursued a theory so far-fetched that “no effective attorney
representing Griffin alone would have resorted to it”).
Moreover, Daggs failed to adduce any evidence that Reeves
even lived at the house, as the prosecutor noted in his
summation in McFarland's trial. ("There's been no direct
testimony that Donna Reeves lived there.")
Instead of the obvious defense of inculpating Reeves,
Daggs chose to point the finger at Eaton and Rayford. Eaton,
though present at the time of the search, had no key to the
locked room. Rayford was not present at the house during the
search and was linked to the house only by the presence of
documents, including a marriage license bearing his name and
Reeves's and some letters addressed to him at the house, and
the possible inference that he was the male described in the
search warrant.
Daggs’s duty of loyalty to Reeves would have been
breached had he actively pursued a theory that she was guilty
of the charges while he was currently representing Reeves in
a trial on those same charges; had Daggs developed and
presented evidence and arguments establishing Reeves’s guilt,
for example, by calling McFarland or Eaton to testify, or by
bringing out on cross-examination that Hawes understood the

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No. 01-1360 McFarland v. Yukins 33
southeast bedroom to be Reeves's, Daggs's work product
could have been used against his own client. See Mich. Rules
of Prof'l Conduct R. 1.7 (1985) ("A lawyer shall not represent
a client if the representation of that client will be directly
adverse to another client . . . .").
The district court found that Daggs's decision to argue that
neither Reeves nor McFarland possessed the drugs, instead of
contending that Reeves was the owner, resulted from his
conflict of interest. The district court found that "Daggs'
decision to present a common defense harmful to
[McFarland] was the result of his desire to protect Reeves'
interests and thus indicative of his struggle to serve two
masters." (quotation marks omitted). The district court
specifically found that because McFarland and Reeves were
tried separately, there was no countervailing advantage to
McFarland from the common defense strategy pursued by
Daggs. The district court held that this evidence proved that
Daggs made a choice in his representation of McFarland that
was caused by his conflict of interest. The district court's
finding of subjective motivation is not clearly erroneous. See
Burger v. Kemp, 483 U.S. at 785.
This case therefore presents an actual choice by
McFarland's counsel to forego an obvious and strong defense
to avoid inculpating another client. The district court's legal
conclusion that Daggs labored under an actual conflict of
interest establishing a Sixth Amendment violation under
Sullivan is correct.
At the time of McFarland’s appeal, the Michigan Court of
Appeals would, of course, have followed Sullivan. See, e.g.,
People v. Rhinehart, 385 N.W.2d 640, 641 (Mich. Ct. App.
1986). Had McFarland’s counsel raised this argument on
appeal, McFarland should have prevailed.
34 McFarland v. Yukins No. 01-1360
C.
McFarland also argues that Daggs’s errors and omissions
violated her Sixth Amendment rights, even without regard to
whether Daggs was subject to a conflict of interest. Under the
rule of Strickland v. Washington, 466 U.S. 668 (1984), a
defendant’s right to effective assistance of counsel is violated
where counsel’s representation “fell below an objective
standard of reasonableness,” id. at 688, and where there is “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different,” id. at 694.
The district court did not reach the claim of ineffective
assistance of counsel under the Strickland standard.
However, without repeating our discussion in Part II B, it is
clear that McFarland had a strong argument that Reeves
occupied the locked southeast bedroom and possessed the
drugs found there.
Under Michigan law, the State only needed to prove that
McFarland had joint, not exclusive, possession of the drugs.
People v. Konrad, 536 N.W.2d 517, 521 (Mich. 1995).
McFarland’s name appeared on numerous documents found
in the dresser of the southeast bedroom, so there was some
evidence linking her to the drugs. Still, in order to prevail
under Strickland, it was not necessary to prove McFarland
would necessarily have prevailed at trial, only that there was
a “reasonable probability” that she would have done so.
After McFarland’s trial, the trial judge mentioned her own
misgivings about the sufficiency of the evidence connecting
McFarland to the drugs. How much more doubt would she
have felt if she had been made aware of the many documents
with Reeves’s name found in the dresser of the southeast
bedroom? Or of the fact that McFarland’s purse was found in
the second bedroom, not the bedroom with the drugs? Or if
Hawes had testified, as he did in Reeves’s case, that the
southeast bedroom was Reeves’s and the second bedroom

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No. 01-1360 McFarland v. Yukins 35
was McFarland’s? Or if counsel had brought out the
exchange between the confidential informant and “Donna”?
Reeves’s connection with the locked room was strong enough
to raise a reasonable probability that McFarland’s trial would
have had a different outcome if her lawyer had actively
pursued the defense that the southeast bedroom and the drugs
in it belonged to Reeves and to make it unreasonable for
Daggs to have failed to do so.
We conclude that if state appellate counsel had argued that
Daggs’s failure to contend that the drugs belonged to Reeves
was ineffective assistance of counsel, McFarland should have
won her appeal.
III.
Having decided that McFarland would likely have
prevailed on her appeal if counsel had argued that her trial
counsel was ineffective, we must still decide whether
appellate counsel's failure to raise the argument was
sufficiently unreasonable to violate McFarland's right to
counsel.
Failure of appellate counsel to raise an issue can amount to
constitutionally ineffective assistance. E.g., Joshua v. Dewitt,
341 F.3d 430, 441 (6th Cir. 2003); Lucas v. O’Dea, 179 F.3d
412, 419 (6th Cir. 1999); Mapes v. Coyle, 171 F.3d 408, 427-
29 (6th Cir. 1999). However, counsel has no obligation to
raise every possible claim, see Jones v. Barnes, 463 U.S. 745,
751-54 (1983), and the decision of which among the possible
claims to pursue is ordinarily entrusted to counsel's
professional judgment, see Smith v. Murray, 477 U.S. 527,
536 (1986). "Counsel's performance is strongly presumed to
be effective." Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir.
2000) (citing Strickland, 466 U.S. at 690). Even if counsel
made a mistake, the mistake might not be serious enough to
have affected the defendant's constitutional right to counsel.
Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001), cert.
denied, 535 U.S. 940 (2002).
36 McFarland v. Yukins No. 01-1360
We have identified a list of relevant factors which help us
distinguish a case of ineffective assistance of appellate
counsel from the case in which counsel's decision to omit an
argument on appeal falls within the realm of acceptable
professional performance:
(1) Were the omitted issues "significant and obvious"?
(2) Was there arguably contrary authority on the omitted
issues?
(3) Were the omitted issues clearly stronger than those
presented?
(4) Were the omitted issues objected to at trial?
(5) Were the trial court's rulings subject to deference on
appeal?
(6) Did appellate counsel testify in a collateral
proceeding as to his appeal strategy and, if so, were the
justifications reasonable?
(7) What was appellate counsel's level of experience and
expertise?
(8) Did the petitioner and appellate counsel meet and go
over possible issues?
(9) Is there evidence that counsel reviewed all the facts?
(10) Were the omitted issues dealt with in other
assignments of error?
(11) Was the decision to omit an issue an unreasonable
one which only an incompetent attorney would adopt?
Mapes, 171 F.3d at 427-28.
We have already decided in part II, supra, that McFarland
received ineffective assistance of trial counsel, which should
have led to reversal of her conviction. It therefore follows
that this argument was stronger than the seven arguments
counsel raised on direct appeal. One of those arguments
resulted in McFarland's sentence being reduced from twenty
to thirty years to ten to thirty years; nevertheless, it goes
without saying that a defendant would prefer a reversal to
resentencing.

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No. 01-1360 McFarland v. Yukins 37
Further, the conflict issue was obvious. Appellate counsel
testified he was aware that McFarland and Reeves were
represented by the same attorney at trial. The colloquy
containing McFarland's request for separate counsel appears
in the trial transcript, as does the evidence pointing to Donna
Reeves's occupancy of the southeast bedroom where the
contraband was found. The brief on direct appeal included a
challenge to the sufficiency of the evidence and included
extensive citation to the trial transcript, thus showing counsel
possessed a thorough knowledge of the transcript. One of the
points counsel did raise on appeal concerned the sufficiency
of the affidavit supporting the search warrant; this affidavit
stated that the confidential informant had tried to buy drugs
from "Donna" and that Donna replied that she had dilaudids
but would not sell them to someone she did not know. Thus,
it is beyond dispute that appellate counsel had information
before him that pointed to the defense that the drugs belonged
to Donna Reeves, that appellate counsel knew Donna Reeves
and McFarland were represented by the same attorney at trial,
and that they had unsuccessfully sought separate counsel.
The Sixth Amendment violation would have resulted in
automatic reversal under the rule in Holloway. It is therefore
difficult to excuse counsel’s failure to argue a point that
would have led so expeditiously to reversal of the conviction.
Sometimes, omission of certain arguments or evidence is
shown by the attorney's testimony to have been a reasonable
strategic decision or to be the result of factors beyond the
attorney's control. See Scott, 209 F.3d at 880-81 (decision not
to present mitigating evidence part of strategy to keep
defendant's criminal history from jury); Mapes, 171 F.3d at
430 (Siler, J., concurring and dissenting) ("[Counsel] may
have had strategic reasons for omitting the issue, or his client
may have requested that it be omitted."). That is not the case
here. Appellate counsel testified that he could not even recall
whether he had raised a claim of conflict of interest on
McFarland's behalf. Moreover, appellate counsel himself
represented both McFarland and Reeves on appeal. It would
38 McFarland v. Yukins No. 01-1360
have been difficult, if not impossible, for appellate counsel to
argue that trial counsel's conflict prevented trial counsel from
pointing the finger at Reeves when appellate counsel was also
representing Reeves on appeal. This spectre of yet another
conflict of interest contributes to McFarland's showing of
ineffective assistance of appellate counsel. See Greer v.
Mitchell, 264 F.3d 663, 680 (6th Cir. 2001), cert. denied, 535
U.S. 940 (2002).
We conclude that appellate counsel's ineffectiveness was
the cause for McFarland's failure to raise ineffectiveness of
trial counsel on appeal. Because we have already held that
the ineffectiveness claim was meritorious and should have
resulted in a reversal of McFarland's conviction, there is no
question but that appellate counsel's errors were prejudicial.
Consequently, McFarland has shown cause and prejudice
excusing her failure to raise ineffective assistance of trial
counsel on her direct appeal. Nothing, therefore, bars her
from litigating this claim.
IV.
The Warden argues that the district court erred in allowing
McFarland the evidentiary hearing at which appellate counsel
testified. The district court found that McFarland "diligently
requested an evidentiary hearing on the issue of ineffective
assistance of counsel at every stage of her post-conviction
proceedings in the Michigan courts." Since McFarland was
denied such a hearing, she was therefore entitled to present
evidence in the habeas proceeding on the subject of whether
her appellate counsel was ineffective. The Antiterrorism and
Effective Death Penalty Act outlines a heightened standard
for a petitioner seeking an evidentiary hearing if the petitioner
has "failed to develop the factual basis of a claim in State
court proceedings." 28 U.S.C. § 2254(e)(2) (2000). We have
held that a petitioner who was diligent in seeking a state
evidentiary hearing, but whose requests were denied in the
state courts, did not "[fail] to develop the factual basis of the
claim" and therefore the heightened standard of § 2254(e)(2)

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No. 01-1360 McFarland v. Yukins 39
was inapplicable. Greer v. Mitchell, 264 F.3d 663, 681 (6th
Cir. 2001) (quoting Williams v. Taylor, 529 U.S. 362, 432
(2000)) (petitioner was diligent in seeking hearing on
ineffective assistance of appellate counsel claim in state post-
conviction proceedings; therefore, petitioner was entitled to
hearing on claim in federal habeas), cert. denied, 535 U.S.
940 (2002); Sawyer v. Hofbauer, 299 F.3d 605, 610 (6th Cir.
2002). But cf. Martin v. Mitchell, 280 F.3d 594, 615 (6th Cir.
2002) (holding that petitioner who failed to raise ineffective
assistance of trial counsel on direct appeal had therefore
"failed to develop the factual basis" of that claim, even though
petitioner argued that failure was due to ineffective assistance
of appellate counsel), cert. denied, 537 U.S. 1004 (2002) and
123 S. Ct. 2601 (2003). The Warden does not dispute the
district court's finding that McFarland sought an evidentiary
hearing in her state postconviction motion and that no hearing
was allowed by the state courts. The record before us does
not contain the motion itself, but it does contain McFarland's
postconviction brief to the Michigan Supreme Court, which
specifically requests an evidentiary hearing. The
postconviction motion was McFarland's first opportunity to
raise the ineffectiveness of her appellate counsel.
Accordingly, the heightened standard of § 2254(e)(2) does not
apply to McFarland's case and the district court did not violate
§ 2254(e)(2) in affording her a hearing on the subject of her
appellate counsel's representation.
V.
Because this case was filed after the effective date of the
Antiterrorism and Effective Death Penalty Act, Pub. L. No.
104-132, Tit. I, § 104, 110 Stat. 1218 (1996), amending 28
U.S.C. § 2254, in order to decide whether habeas was
properly granted, it is not enough to decide whether there was
a violation of McFarland’s constitutional rights. We must
further determine whether the constitutional claim was
adjudicated on the merits in state court proceedings. If so, a
writ of habeas corpus may only be granted if the state
adjudication (1) “resulted in a decision that was contrary to,
40 McFarland v. Yukins No. 01-1360
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.” 28
U.S.C. § 2254(d).
The only state court decision on the merits in this case is
the trial court’s response to McFarland’s objection to having
to proceed to trial with the same counsel as Reeves. At that
time, McFarland’s actual conflict claim, which depends on
the existence of an adverse effect on Daggs’s representation,
and her Strickland v. Washington, 466 U.S. 668 (1984),
claim, which depends on Daggs’s omission of a defense at
trial, had not matured and so could not possibly have been
included in the trial court’s ruling. It therefore appears that
the Cuyler v. Sullivan, 446 U.S. 335 (1980), and Strickland
claims must be reviewed de novo, rather than under the
heightened standard of review appropriate for claims that
have been adjudicated on the merits in state courts. See
Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003) (“Where,
as here, the state court did not assess the merits of a claim
properly raised in a habeas petition, the deference due under
the AEDPA does not apply.”). As we have already
determined that McFarland established Sixth Amendment
violations on both the Sullivan and Strickland claims, no
further analysis is necessary to establish her right to relief on
those claims.
The Holloway v. Arkansas, 435 U.S. 475 (1978), claim (see
supra at Part II.A.), however, is subject to the heightened
AEDPA standard. Under the first clause of § 2254(d), a state
court decision is “contrary to [the Supreme Court’s] clearly
established precedent if the state court . . . confronts a set of
facts that are materially indistinguishable from a decision of
[the Supreme] Court and nevertheless arrives at a result
different from [Supreme Court] precedent.” Lockyer v.
Andrade, 538 U.S. 63, 123 S. Ct. 1166, 1173 (2003) (quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). This

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No. 01-1360 McFarland v. Yukins 41
scenario fits McFarland’s case precisely. McFarland, like the
petitioners in Holloway, objected before trial to having to
proceed to trial with one counsel for two defendants.
Although the trial court severed McFarland’s trial from her
co-defendant’s, which we have determined did not obviate the
conflict of interest, McFarland, like the Holloway petitioners,
was forced, over her objection, to go to trial with counsel who
was actively representing a co-defendant. Forcing McFarland
to go to trial with conflicted counsel contradicts the clearly
established precedent of Holloway v. Arkansas. McFarland
has shown that she is entitled to relief under the AEDPA.
***
For all of the reasons set forth above, we affirm the district
court’s grant of the conditional writ of habeas corpus.

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