Terrence Hyman v. Theodis Beck

Filing

Amending opinion filed [998651962] amending and superseding Unpublished per curiam Opinion [998636707-4]. Originating case number: 5:08-hc-02066-BO. Copies to all parties. [10-6652]

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Date Filed: 08/10/2011

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AMENDED OPINION
UNPUBLISHED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
Amended Opinion Filed:

Decided:

July 21, 2011

August 10, 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Appeal stayed by unpublished per curiam opinion.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.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In
convicted

September

in

the

2003,

Superior

petitioner
Court

of

Terrence

Bertie

Hyman

County,

was
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).
v.

Beck,

No.

5:08-hc-02066

(E.D.N.C.

Mar.

31,

See Hyman
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.)

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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

representation

of

both

conflict

Hyman

and

emanated
Speller.

from
By

Smallwood’s

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.
In his first state court appeal (“Hyman I”), Hyman
asserted his Sixth Amendment claim and discussed both conflict
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of interest issues.

Nevertheless, the Court of Appeals of North

Carolina

only

addressed

the

dual

remanding the matter for a hearing.

representation

concluded
Speller

that

had

Smallwood’s

not

On remand, the trial court

representation

adversely

conflict,

affected

of

Hyman’s

both

Hyman

defense.

and

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

exculpatory

witness

Certiorari

was

Accordingly,

the

to

component

denied,
North

have
of

his

however,
Carolina

that

court

Sixth

on

consider

Amendment

December

courts

have

claim.

22,

never

the

2008.

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

club, according to Speller, but he only fired gunshots into the
air.
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When

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the

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prosecutor

Speller

asked

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 crossexamination 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
Hyman’s

violation

case

in

the

hearing,
parking

he
lot

talked
of

with

her

Smallwood

office.

about

Speller’s

account was that he told Smallwood that his evidence “would harm
[Hyman] more than [it] could help him.”

J.A. 72.

Faced with

Speller’s intransigence, Smallwood requested the trial court to
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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,

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

the

Lloyd

Pugh testified to breaking up a fight between Telly Swain — once
a co-defendant of Hyman — and Swain’s brother.
Lloyd Pugh saw Hyman leave the club.

While doing so,

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,

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

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which the court dutifully imposed.

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Hyman’s state court appeal

proceedings then ensued.

2.
a.
In the Hyman I appeal, Hyman sought relief from his
conviction
Carolina.
of

which

and

sentence

in

the

Court

of

Appeals

of

North

He initially presented ten assignments of error, two
(Assignments

Amendment claim. 2

9

and

10)

are

relevant

to

his

Sixth

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

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In

his

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appellate

brief

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in

Hyman

I,

Hyman

Assignments of Error 9 and 10 for briefing purposes.
the

dual

actual

representation

conflict

of

conflict,

interest

Hyman

exists

explained

where

combined

Addressing
that

defense

“[a]n

counsel

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

representation

Hyman maintained

is

that

in
the

an

unrelated

trial

court

matter.”
had

erred

J.A.
when,

268.
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

witnesses.”

Speller,

J.A. 269.

one

of

the

State’s

most

crucial

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

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Hyman’s

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primary

authority

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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.
conflict

of

The James court recognized a Sixth Amendment

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

attorney.”

several

avenues

433 S.E.2d at 758.

of

possible

conflict

for

an

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
the

time

of

trial

attorney . . . resulted

in

of

both

an

parties

unavoidable

by

conflict

[the]
as

to

confidential communications, and affected counsel's ability to
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effectively

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impeach

the

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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
Id. at 759.

reversible error “in and of itself.”

Thereafter, in Green, the court of appeals assessed a
situation

where

a

pursue

line

of

a

witness”

and

his

defense

lawyer

impeachment
choice

“had

to

questioning

“could

have

decide
with

required

whether

a
the

to

particular
attorney

himself to testify and thus could have created the possibility
that the attorney would have to withdraw from the case.”
S.E.2d at 460.

500

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
line

of

impeachment

questioning.

Proceeding

carefully,

the

trial court appointed separate counsel to inform and advise the
defendant

on

the

conflict

issue.
11

Although

the

defendant

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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

right to conflict-free counsel.
concluded

that

the

Green

his
Id.

defendant

client’s

Sixth

Amendment

Nevertheless, the court
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
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.
3

See 446 U.S. at 348.

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

12

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

becomes

aware

of

a

lawyer’s

potential

conflict

interest, it is obliged to conduct an appropriate hearing.
James, 433 S.E.2d at 758.
appeals

observed

that,

of
See

Based on that precedent, the court of
“[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

probation violation hearing.

had

represented

Speller

in

the

The court did not acknowledge the

exculpatory witness conflict.

3.
On November 2, 2005, the trial court conducted the
hearing directed by the court of appeals in Hyman I.
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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
herself.
the

The sole witness at the hearing was Smallwood

She explained that her representation of Speller in

probation

violation

hearing

occurred

on

a

2002, more than a year before the Hyman trial.

4

single

day

in

According to

Hyman appeared at the remand hearing with attorney Jackson
Warmack, who had represented former co-defendant Telly Swain
throughout the original murder proceedings.
The court enlisted
Warmack’s assistance after it “discussed this matter with the
prosecution” and “decided in the best interest of all that Mr.
Hyman have a new attorney appointed to represent him.”
J.A.
115-16. Notwithstanding his prior involvement adverse to Hyman,
Warmack agreed to the appointment, explaining that he “contacted
the State bar and determined there would be no conflict there.”
Id. at 116.
Warmack then represented to the court that he met
with Hyman and “explained the situation and told him that if he
had any problems with it this would be the time.”
Id.
Following these representations, the court asked Hyman whether
he had any objection to being represented by Warmack, and Hyman
responded in the negative. See id.

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Smallwood, she represented Speller for only five to ten minutes,
during which there was no discussion of Hyman or the Bennett
shooting.

Smallwood

representation

of

also

asserted

Speller

did

(incorrectly)
not

overlap

that
with

her
her

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.

discussions

with

representation

of

Smallwood

maintained

Speller

about

Hyman’s

Speller

concluded.

On

that

defense

she

had

after

her

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

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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-

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.
including

The Remand Ruling made several findings of fact,
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.
on

the

dual

Id. at 2.

representation

The Remand Ruling denied relief
conflict,

specifying

that

“Smallwood’s representation of Terrence Hyman was not adversely
affected

by

her

previous

representation

of

Derrick

Id.

5

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

16

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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
[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

representation of Speller had not adversely affected Hyman.

prior
See

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

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“Hyman II Opinion”). 6
contention thusly:
it

concluded

Page: 18 of 30

The court of appeals characterized Hyman’s

“Defendant argues the trial court erred when

Smallwood’s

representation

of

him

had

not

been

adversely affected by her prior representation of Speller, a
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,

v.

under

State

concluded that
had

not

James,

Smallwood’s

adversely

the

trial

previous

affected

Hyman:

court

had

representation
“As

distinct

correctly
of

Speller

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

defendant at his first degree murder trial.”
quotation marks omitted). 7

representation

of

Id. at 5 (internal

Furthermore, the court of appeals

observed:

6
7

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

As
established
represented Speller at
September 26, 2002.
She
Hyman since May 2001.
September 2003.

at
the
remand
hearing,
Smallwood
his probation violation hearing on
had by then already been representing
Hyman’s trial did not commence until

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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.
Id. (internal quotation marks omitted).

Again, as in Hyman I,

the court did not acknowledge the exculpatory witness conflict.

5.
Thereafter,
certiorari

in

the

on

May

Supreme

31,

Court

2008,
of

Hyman

North

petitioned

Carolina.

In

for
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.
encompass
underscored

Thus, Hyman refined his Sixth Amendment claim to
only

the

that

exculpatory

the

court

witness
of

component,

appeals

“didn’t

and

he

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
19

not

only

from

conflicts

Appeal: 10-6652

Document: 40

between

the

conflicts
Id.

at

Date Filed: 08/10/2011

interests

between
202.

the

of

counsel’s

client’s

Hyman

Page: 20 of 30

and

maintained

clients,
counsel’s

that

but
own

also

from

interests.”

Smallwood’s

conflict

adversely affected him in that “it would be impossible for any
attorney to make an objective assessment of her own importance
as

a

witness,

considerations

independent

arising

serving as counsel.”
Supreme

Court

of

from

of
her

personal
likely

Id. at 208.
North

petition for certiorari.

Carolina

and

professional

inability

to

continue

On December 11, 2008, the
summarily

denied

Hyman’s

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
(Continued)
20

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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.
granted

By its Order of March 31, 2010, the district court
the

writ.

The

District

disposed of two issues:

Court

Order

addressed

and

(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,
exhaustion issue.
maintained

that

the

district

court

began

with

the

In its motion for summary judgment, the State
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

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.”).

21

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II brief.

Date Filed: 08/10/2011

Page: 22 of 30

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.
defaulted

As such, the State contended, Hyman had procedurally
the

exculpatory

federal court review.

witness

component

for

purposes

of

The district court disagreed with the

State, premised on its determination that there was no failure
to exhaust because both the Court of Appeals and the Supreme
Court

of

North

opportunity’

to

Carolina
consider

“were
the

given

substance

a
of

‘full

and

[Hyman’s]

fair

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.”
during

pretrial

District Court Order 12.

representation

counsel

Furthermore, “if

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
22

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Page: 23 of 30

Id. at 15.9

Pugh that Jordan had actually murdered Bennett.
“Smallwood’s
affected

actual

her

conflict

performance,”

and

Amendment right to counsel.
North

Carolina

district

courts

court,

“an

to

of

Hyman

Id.
the

interest

[thereby]

was

denied

adversely
his

Sixth

The implicit conclusion of the

contrary

objectively

was,

according

unreasonable

to

application

the
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.
103

(4th

Cir.

See Bauberger v. Haynes, 632 F.3d 100,

2011).

Our

analysis

is

tempered

by

the

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

accordance

with

AEDPA,

a

federal

9

court

may

grant

habeas

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).

23

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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
facts in light of the evidence presented in the State court
proceeding.”

28 U.S.C. § 2254(d).

III.
In
contest

the

Hyman’s

this

appeal,

merits

Sixth

of

the

the

Amendment

State

not

exculpatory
claim,

but

only

continues

to

witness

component

of

also

reiterates

the

contention that Hyman failed to exhaust the exculpatory witness
component

of

the

claim

in

the

North

procedurally defaulted federal review.

Carolina

courts

and

Section 2254(b)(1)(A) of

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

unless
in

the

“the

applicant

courts

of

the

has

exhausted

State.”

the

remedies

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
24

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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

doctrine of procedural default.”
1998).

habeas

review

is

the

134 F.3d 615, 619 (4th Cir.

One manner in which procedural default occurs is

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).
occurs

“[i]f

a

state

court

clearly

Procedural default also
and

expressly

bases

its

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

and

that

procedural

rule

adequate ground for the dismissal.”

provides

an

independent

and

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 statelaw 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.”

Nunnemaker, 501 U.S. 797, 803 (1991)).
25

Id.

(citing

Ylst

v.

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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.”
of Appellant 11.

Br.

The State further maintains that, “[b]ecause

Hyman cannot now return to state court and raise his § 2254
claim anew, it is procedurally defaulted.”
heretofore
Supreme

discussed,

Court

of

neither

North

the

Carolina

Court
has

Id.
of

Of course, as

Appeals

directly

nor

the

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.
26

See Rhines

Appeal: 10-6652

v.

Document: 40

Weber,

544

Date Filed: 08/10/2011

U.S.

269,

275-78

Page: 27 of 30

(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.
U.S. at 269.

See 544

Prior to AEDPA’s enactment, a district court could

dismiss a mixed habeas petition without prejudice and permit the
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
27

federalism

and

comity”).

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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.
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.
DiGuglielmo,

544

U.S.

408,

416

(2005);

see

See Pace v.

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 postconviction

or

collateral

review

tolls

established in 28 U.S.C. § 2244(d)(2). 10

the

AEDPA

time

bar

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
10

Section 2244(d)(2) of Title 28 provides that “[t]he time
during which a properly filed application for State postconviction 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.”

28

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federal court to stay and abey the federal
proceedings until state remedies are exhausted.
Id. at 416.

habeas

The stay and abeyance procedure was recommended by

the Pace Court

without

any

petitioner

pursuing

a

was

discussion
mixed

of

§ 2254

whether

the

petition.

habeas
To

the

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

constrain

us

opportunity
issues.

to
to

the

doctrines

provide
weigh

in

of

the

North

on

the

federalism
Carolina

procedural

and

courts
and

comity
with

an

substantive

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.
11

During the

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.

29

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pendency of the stay, we request that counsel — at least every
ninety days — provide us with appropriate status reports.

APPEAL STAYED

30