The motion of appellant Holmes for stay of execution is granted, pending further order of this Court, the Supreme Court, or a justice thereof. The motion for appointment of counsel is also granted.
Holmes suggests at least two respects in which his trial counsel may have been ineffective in the constitutional sense: (1) by making improvident concessions in argument to the jury, and (2) by failing to urge a statutory mitigating circumstance that Holmes would apparently have been entitled to.
If this were Holmes’s first habeas petition, there would be little doubt that these contentions are substantial enough to require a stay and appointment of counsel. But it is a motion for a stay to obtain time to research and file a second petition, see McFarland v. Scott, — U.S. -, -, 114 S.Ct. 2568, 2573, 129 L.Ed.2d 666 (1994), and Holmes must overcome the abuse-of-the-writ defense. He appears to have a nonfrivolous theory for doing so. The same lawyer has (until now) represented Holmes throughout the case: at trial, on direct appeal, in the state-court post-*1241conviction proceeding, and in the first federal habeas proceeding. One could hardly expect that lawyer to argue his own ineffectiveness with any degree of conviction or persuasiveness. To make such an argument places a lawyer in the sharpest sort of conflict of interest, a conflict between his client and himself. This sort of conflict is surely “cause” to excuse Holmes’s failure to raise counsel’s ineffectiveness in his first habeas petition. Since 1988, appointment of counsel has been required by statute, 21 U.S.C. § 848(q)(4)(A), in federal habeas proceedings in capital cases. The counsel contemplated by Congress has to be counsel free of conflict of interest.
But what about procedural bar? The arguments presently suggested have never been made in the state courts. (Nor does the State say that they could be now.) Ineffectiveness of counsel in state-court posteon-viction proceedings cannot be “cause” for avoiding a procedural bar, and I assume for present purposes that conflict of interest can’t be either. But the same lawyer was counsel on Holmes’s direct appeal, and conflict of interest on direct appeal certainly qualifies as “cause.” There is a federal constitutional right to counsel on direct appeal from a state conviction carrying a penalty of imprisonment or death.
Holmes can also probably show “prejudice.” If his claims have merit, the prejudice is obvious.
Of course it is irritating to be confronted with an argument like this at the eleventh hour. But when life is at stake, we judges should swallow our irritation and choose life, at least to the extent of preserving it long enough to take a good look at Holmes’s new case.