Terrence Lowell Hyman v. Alvin W. Keller, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-6652

TERRENCE LOWELL HYMAN,

Petitioner – Appellee,

v.

ALVIN W. KELLER, JR.,

Respondent – Appellant.

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

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

Before WILKINSON, KING, and AGEE, Circuit Judges.

Appeal stayed by unpublished per curiam opinion.

ARGUED: Mary Carla Hollis, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellant. Nicholas Collins
Woomer-Deters, NORTH CAROLINA PRISONER LEGAL SERVICES, INC.,
Raleigh, North Carolina, for Appellee. ON BRIEF: Roy Cooper,
Attorney General of North Carolina, Raleigh, North Carolina, for
Appellant. Paul M. Green, Durham, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

In September 2003, petitioner Terrence Hyman was

convicted in the Superior Court of Bertie County, North

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

sentenced to life in prison without parole. Following

unsuccessful direct appeals in the North Carolina courts, Hyman

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

the Eastern District of North Carolina. The district court

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

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

conflict as a potential exculpatory witness (the “exculpatory

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

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

“District Court Order”). 1

This appeal is pursued by respondent Alvin W. Keller,

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

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

court erred by ruling that the exculpatory witness component had

been exhausted in the state courts and in awarding habeas relief

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

Carolina courts have never explicitly resolved the exculpatory

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

2
witness component, on either procedural or substantive grounds,

the interests of federalism and comity compel us to stay this

appeal pending further state court proceedings.

I.

A.

At his murder trial, Hyman was represented by lawyers

Teresa Smallwood and W. Hackney High; this appeal implicates

Smallwood’s failure to withdraw from her representation of Hyman

and testify on his behalf. Smallwood had interviewed a key

witness against Hyman, Derrick Speller, in her investigation of

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

a probation violation hearing. Smallwood’s interactions with

Speller posed two separate conflicts underlying Hyman’s Sixth

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

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

Court of Appeals of North Carolina concluded on direct review,

the dual representation conflict emanated from Smallwood’s

representation of both Hyman and Speller. By contrast, the

exculpatory witness conflict arose because Speller admitted to

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

named Demetrius Jordan shoot and kill Bennett.

3
 In his first state court appeal (“Hyman I”), Hyman

asserted his Sixth Amendment claim and discussed both conflict

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

Carolina addressed only the dual representation conflict,

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

concluded that Smallwood’s representation of both Hyman and

Speller had not adversely affected Hyman’s defense. Hyman

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

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

thereafter petitioned for certiorari in the Supreme Court of

North Carolina, seeking to have that court consider the

exculpatory witness component of his Sixth Amendment claim.

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

Accordingly, the North Carolina courts have never directly

confronted the exculpatory witness conflict.

1.

The prosecution’s theory at Hyman’s September 2003

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

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

Bertie County. Speller testified at trial that he saw Hyman

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

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

again outside the club. Demetrius Jordan was also outside the

4
club, according to Speller, but he only fired gunshots into the

air.

When the prosecutor asked Speller whether he had

discussed the case with anyone else, Speller acknowledged that

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

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

2001, Smallwood interviewed Speller, who implicated Jordan and

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

briefly represented Speller in a probation violation hearing.

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

2001 interview were prominently featured in Smallwood’s cross-

examination of Speller, as Smallwood sought to establish that

Speller had previously identified Jordan as the killer, but had

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

example, Smallwood asked Speller whether he had previously told

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

After Speller disclaimed any such conversation, Smallwood

inquired whether Speller had admitted to her that Jordan would

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

that statement.

Speller instead asserted at trial that, after his 2002

probation violation hearing, he talked with Smallwood about

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

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

5
[Hyman] more than [it] could help him.” J.A. 72. Faced with

Speller’s intransigence, Smallwood requested the trial court to

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

November 2001 interview. This was Smallwood’s only request

regarding her notes, and it was denied.

Other than Speller, the only witness implicating Hyman

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

Smallwood and her co-counsel called two exculpatory eyewitnesses

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

he saw Demetrius Jordan shoot Bennett three times, twice while

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

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

Jordan obtained another handgun and shot Bennett the third time.

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

Hyman with a firearm. Pugh further testified that when Bennett

was shot, Hyman had already left the club.

Thereafter, Hyman’s lawyers called Lloyd Pugh, the

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

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

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

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

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

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

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

6
2003, the jury recommended a sentence of life without parole,

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

proceedings then ensued.

2.

a.

In the Hyman I appeal, Hyman sought relief from his

conviction and sentence in the Court of Appeals of North

Carolina. He initially presented ten assignments of error, two

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

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

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

J.A. 248. Assignment 10 stated:

Defendant was denied the assistance of counsel because
his attorney failed to withdraw from representation

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

7
 when it became apparent that she had a conflict of
interest.

Id.

In his appellate brief in Hyman I, Hyman combined

Assignments of Error 9 and 10 for briefing purposes. Addressing

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

actual conflict of interest exists where defense counsel

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

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

Hyman maintained that the trial court had erred when, after

being made aware of the dual representation conflict, it failed

to conduct an appropriate hearing to render Hyman fully advised

of the conflict and give him an opportunity to express his

views.

Hyman’s appellate brief in Hyman I further asserted,

in an argument geared to the exculpatory witness conflict, that

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

she was in possession of information which could be used to

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

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

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

8
 weight had she been on the stand testifying under
oath.

Id.

Hyman’s primary authority for his Sixth Amendment

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

in which the Court of Appeals of North Carolina relied heavily

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

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

simultaneously representing a prosecution witness on unrelated

criminal charges. The James court recognized a Sixth Amendment

conflict of interest issue and invoked the Supreme Court’s

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

Sixth Amendment ineffective assistance claim is premised on an

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

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

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

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

of North Carolina recognized that the “representation of the

defendant as well as a prosecution witness (albeit in another

matter) creates several avenues of possible conflict for an

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

the James lawyer “did actively represent conflicting interests

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

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

9
the time of trial of both parties by [the]

attorney . . . resulted in an unavoidable conflict as to

confidential communications, and affected counsel's ability to

effectively impeach the credibility of [the prosecution]

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

Finally, the court instructed that,

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

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

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

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

Thereafter, in Green, the court of appeals assessed a

situation where a defense lawyer “had to decide whether to

pursue a line of impeachment questioning with a particular

witness” and his choice “could have required the attorney

himself to testify and thus could have created the possibility

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

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

lawyer’s conflict and questioned the defendant to confirm that

he understood the conflict and why his lawyer was abandoning a

10
line of impeachment questioning. Proceeding carefully, the

trial court appointed separate counsel to inform and advise the

defendant on the conflict issue. Although the defendant

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

pursued a Sixth Amendment ineffective assistance claim on

appeal. The court of appeals recognized that a defense lawyer

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

to testify thereby jeopardizes his client’s Sixth Amendment

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

concluded that the Green defendant had plainly waived the

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

Id.

b.

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

of Appeals of North Carolina recognized that Smallwood had a

conflict of interest that arose from her dual representation of

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

conduct an evidentiary hearing on whether Hyman’s defense had

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

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

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

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

11
fails to timely object to a conflict of interest on the part of

his lawyer must show that the conflict adversely affected the

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

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

court becomes aware of a lawyer’s potential conflict of

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

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

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

[Smallwood] had also previously represented a witness for the

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

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

failing to comply with the hearing requirement of James.

Nonetheless, the court of appeals was not convinced that Hyman

was entitled to relief, explaining:

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

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

Smallwood had a conflict of interest when she defended Hyman at

trial, but only because she had represented Speller in the

probation violation hearing. The court did not acknowledge the

exculpatory witness conflict.

12
 3.

On November 2, 2005, the trial court conducted the

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

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

trial court that the court of appeals had

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

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

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

thus addressed and disposed of the dual representation conflict

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

herself. She explained that her representation of Speller in

the probation violation hearing occurred on a single day in

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

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

during which there was no discussion of Hyman or the Bennett

shooting. Smallwood also asserted (incorrectly) that her

representation of Speller did not overlap with her

4
At the Hyman I remand hearing, Hyman was represented by
attorney Jackson Warmack, who had represented Telly Swain in the
original murder trial. Before the hearing began, however, Hyman
waived any conflict of interest on Warmack’s part.

13
representation of Hyman and that she was not even sure whether

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

represented Speller. Smallwood maintained that she had

discussions with Speller about Hyman’s defense after her

representation of Speller concluded. On cross-examination,

Smallwood was asked whether she had any records regarding her

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

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

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

After Smallwood’s testimony, the trial court located

its records regarding Smallwood’s representation of Speller and

Hyman. Those records revealed that Smallwood had appeared in

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

that Smallwood had actually been appointed to represent Hyman on

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

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

bench that

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

J.A. 133.

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

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

14
50423 (N.C. Sup. Ct. Nov. 28, 2005) (the “Remand Ruling”). 5 The

Remand Ruling addressed only the dual representation conflict

and explained that

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

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

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

representation of Speller on September 26, 2002, Smallwood did

not obtain any information about Speller that could have been

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

on the dual representation conflict, specifying that

“Smallwood’s representation of Terrence Hyman was not adversely

affected by her previous representation of Derrick Speller.”

Id.

4.

After the Remand Ruling, Hyman again appealed to the

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

only three assignments of error, the third being that

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

15
 [t]he trial court’s conclusion of law that defense
counsel’s representation of Defendant was not
adversely affected by her prior representation of
Derrick Speller is not supported by the trial court’s
findings of fact or by competent evidence in the
record, and is erroneous as a matter of law.

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

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

dual representation conflict. Hyman’s brief argued that,

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

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

court erred in concluding that he was not adversely affected by

Smallwood’s prior representation of Speller.

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

Remand Ruling as to the dual representation conflict, and it

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

representation of Speller had not adversely affected Hyman. See

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

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

contention thusly: “Defendant argues the trial court erred when

it concluded Smallwood’s representation of him had not been

adversely affected by her prior representation of Speller, a

6
The Hyman II Opinion is found at J.A. 137-41.

16
State’s witness.” Id. at 3. The court of appeals again

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

includes the right to representation that is free from conflicts

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

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

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

concluded that Smallwood’s previous representation of Speller

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

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

of trial between Smallwood’s prior representation of Speller at

his probation violation hearing and her representation of

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

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

observed:

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

7
As established at the remand hearing, Smallwood
represented Speller at his probation violation hearing on
September 26, 2002. She had by then already been representing
Hyman since May 2001. Hyman’s trial did not commence until
September 2003.

17
Id. (internal quotation marks omitted). Again, as in Hyman I,

the court did not acknowledge the exculpatory witness conflict.

5.

Thereafter, on May 31, 2008, Hyman petitioned for

certiorari in the Supreme Court of North Carolina. In his

petition, Hyman presented only one contention, specifying that

his

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

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

encompass only the exculpatory witness component, and he

underscored that the court of appeals “didn’t mention

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

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

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

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

Sixth Amendment violation may arise not only from conflicts

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

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

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

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

18
attorney to make an objective assessment of her own importance

as a witness, independent of personal and professional

considerations arising from her likely inability to continue

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

Supreme Court of North Carolina summarily denied Hyman’s

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

Dec. 11, 2008).

B.

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

petitioning for habeas corpus relief in the Eastern District of

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

petition, Hyman contended that

8
Hyman filed his § 2254 petition in the district court
prior to seeking certiorari in the Supreme Court of North
Carolina. As a result, on October 15, 2008, the district court
stayed Hyman’s § 2254 petition pending a ruling on the petition
for certiorari. On January 19, 2009, after the state supreme
court denied the certiorari petition, the district court lifted
its stay. Notably, Hyman has never sought state collateral
review of his conviction and sentence. See N.C. Gen Stat.
§ 15A-1414 (specifying that defendant may pursue motion for
appropriate relief (“MAR”) — North Carolina’s statutory
procedure for collateral review — within ten days of entry of
criminal judgment). But see id. § 15A-1415(b)(3) (providing
that defendant may file MAR more than ten days after entry of
judgment if “[t]he conviction was obtained in violation of the
Constitution of the United States”); State v. Goodson, 600
S.E.2d 519, No. COA03-834, 2004 WL 1920948, at *4 (N.C. Ct. App.
July 6, 2004) (unpublished table decision) (“[An MAR] based on
[Sixth Amendment] grounds may be filed any time after the
verdict is announced.”).

19
 the state court unreasonably failed to recognize that
Smallwood’s conflict arose not merely from having
previously served as Speller’s attorney, but from
Smallwood’s position as the only person able to
testify that Speller made a highly inconsistent prior
statement identifying the shooter as Demetrius Jordan,
not Hyman.

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

granted the writ. The District Court Order addressed and

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

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

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

relief under the Sixth Amendment.

Appropriately, the district court began with the

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

maintained that Hyman had failed to exhaust the exculpatory

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

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

Hyman did not proffer any evidence or examine Smallwood at the

remand hearing regarding the possibility that she could have

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

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

return to the state courts and attempt to raise the exculpatory

witness component anew, he would be procedurally barred from

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

defaulted the exculpatory witness component for purposes of

federal court review. The district court disagreed with the

20
State, premised on its determination that there was no failure

to exhaust because both the Court of Appeals and the Supreme

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

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

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

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

Turning next to the merits of Hyman’s Sixth Amendment

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

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

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

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

during pretrial representation counsel becomes a witness to

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

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

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

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

“testify herself and proffer impeaching testimony,” even though

her evidence would have corroborated the testimony of Demetrius

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

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

21
“Smallwood’s actual conflict of interest [thereby] adversely

affected her performance,” and Hyman was denied his Sixth

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

North Carolina courts to the contrary was, according to the

district court, “an objectively unreasonable application of

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

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

corpus.

The State has timely appealed from the district

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

pursuant to 28 U.S.C. § 1291.

II.

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

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

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

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

In accordance with AEDPA, a federal court may grant habeas

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

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

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

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

decision that was based on an unreasonable determination of the

22
facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

III.

In this appeal, the State not only continues to

contest the merits of the exculpatory witness component of

Hyman’s Sixth Amendment claim, but also reiterates the

contention that Hyman failed to exhaust the exculpatory witness

component of the claim in the North Carolina courts and

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

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

granted unless “the applicant has exhausted the remedies

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

applicant shall not be deemed to have exhausted the remedies

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

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

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

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

only that state prisoners give state courts a fair opportunity

to act on their claim.”).

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

related limit on the scope of federal habeas review is the

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

1998). One manner in which procedural default occurs is

23
 when a habeas petitioner fails to exhaust available
state remedies and the court to which the petitioner
would be required to present his claims in order to
meet the exhaustion requirement would now find the
claims procedurally barred.

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

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

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

rule, and that procedural rule provides an independent and

adequate ground for the dismissal.” Id.

Notably, the Supreme Court of the United States has

recently instructed that,

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

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

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

there is reason to think some other explanation for the state

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

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

Here, the State contends that Hyman did not fairly

raise the exculpatory witness component in the North Carolina

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

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

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

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

24
heretofore discussed, neither the Court of Appeals nor the

Supreme Court of North Carolina has directly confronted the

procedural or substantive propriety of the exculpatory witness

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

and Hyman II each focused on the dual representation conflict

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

petition for certiorari.

Unfortunately, the basis for the North Carolina

courts’ lack of attention to the exculpatory witness conflict is

unclear — perhaps they did not consider that component of

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

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

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

Hyman seeks to resurrect the exculpatory witness component in

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

In these unusual circumstances, we are constrained to

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

Court in connection with unexhausted § 2254 claims. See Rhines

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

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

habeas petitions (where certain constitutional claims have been

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

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

dismiss a mixed habeas petition without prejudice and permit the

25
petitioner to return to state court on the unexhausted claims.

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

petitioner to seek federal habeas corpus relief within a year of

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

dismissal of a mixed petition without prejudice is no longer a

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

could ultimately be adjudged time-barred under AEDPA.

In recognizing an alternative to dismissal, the Rhines

Court stressed the federalism and comity-related importance of

permitting the state courts to assess constitutional claims in

the first instance — before a federal court does so:

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

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

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

2008) (unpublished order staying appeal involving mixed § 2254

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

Additionally, as the Rhines Court explained, the doctrine of

comity counsels that a federal court

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

26
544 U.S. at 274. With comity specifically in mind, the Court

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

should be stayed for a reasonable time to enable the petitioner

to return to state court and pursue his arguably unexhausted

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

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

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

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

In its Pace decision, the Supreme Court pondered

whether the filing of an untimely application for State post-

conviction or collateral review tolls the AEDPA time bar

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

negative, but went on to explain that

[a] prisoner seeking state post-conviction relief
might avoid this predicament . . . by filing a
‘protective’ petition in federal court and asking the
federal court to stay and abey the federal habeas
proceedings until state remedies are exhausted.

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

the Pace Court without any discussion of whether the habeas

petitioner was pursuing a mixed § 2254 petition. To the

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

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

27
and abeyance procedure under any circumstances that could

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

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

relief on the exculpatory witness component of Hyman’s Sixth

Amendment claim, the doctrines of federalism and comity

constrain us to provide the North Carolina courts with an

opportunity to weigh in on the procedural and substantive

issues. We are therefore content to stay this appeal pending

any appropriate state court proceedings. 11

IV.

Pursuant to the foregoing, we hereby stay this appeal

pending such other and further state court proceedings as may be

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

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

ninety days — provide us with appropriate status reports.

APPEAL STAYED

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

28