*1 SALTS, Petitioner-Appellee- Marie
Cross-Appellant, EPPS, Commissioner,
Christopher B.
Mississippi Department of Correc
tions, al., Respondents-Appellants- et
Cross-Appellees. Salts, Petitioner-Appellee-
Michael
Cross-Appellant,
Christopher Epps, Commissioner, Mis Corrections,
sissippi Department of et
al., Respondents-Appellants-Cross-
Appellees.
No. 10-60201. Appeals,
United States Court of
Fifth Circuit.
March *2 State”) General, (collectively,
torney “the appeal grant from the district court’s petition Michael and Marie Saltses’ for a *3 writ of habeas corpus. peti- Saltses because, alia, tioned for habeas relief inter Mississippi Appeals Court of denied their Sixth Amendment claim for ineffec- tive assistance of counsel. Because the Mississippi contrary court’s decision was law, clearly established we AFFIRM grant the district court’s of habeas relief under 28 U.S.C. 2254. Background procedural history
I. A. The Saltses’ conviction embezzlement Salts, Petitioners Michael and Marie proprietors family-run of a funeral-home in Boonville, Mississippi, charged were and convicted of embezzlement connec- tion with their business. Part of the Salts- business providing es’ involved “funeral in- surance,” insurance, or burial many Waide, (argued), Jim D. III &Waide provided customers. The Saltses Associates, P.A., MS, Tupelo, for Petition- coverage years through Gulf Na- er-Appellee-Cross-Appellant. (“Gulf’).1 tional Insurance Jerrolyn (argued), Lesley M. Owens G. Many funeral-home clients would send Miller, Gen., Jackson, MS, Sp. Atty. Asst. their burial premiums directly insurance for Respondents-Appellants-Cross-Appel- Saltses, who would in turn forward the lees. 1994, however, payments to Gulf. In Gulf
terminated relations with the Saltses and stopped providing insurance to their cus- tomers. Some the Saltses’ customers fact, apparently were unaware of this JONES, Before Judge, Chief they sending payments directly continued STEWART, BENAVIDES and Circuit that, alleged to the Saltses. The in a State Judges. instances, kept number of the Saltses payments returning these rather than
BENAVIDES, Judge: Circuit theory them to the clients. It was on this Respondents Christopher Epps, charged Com- the Saltses were with six of Mississippi Department missioner counts each of of customer embezzlement Corrections, Hood, Mississippi and Jim At- funds. State, following relating (Miss.App.2008).
1. The facts to the Saltses’ 984 So.2d appear embezzlement conviction in Salts v. May on The Saltses were indicted Courthouse available.” [wa]s not The trial years judge granted passed but more than two the motion and set the case trial, September for trial on began their eventual delay 2005. This is attributable October Then, 5, 2005, August the Saltses causes, including a number of two venue, filed a citing motion to transfer case, judges recusing themselves from the local media publicity surrounding the courthouse, at the and series renovations charges against them County. Prentiss requested of continuances the Saltses’ The trial granted the motion on Sep- In the time their indict- counsel. between tember transferring venue to Lee trial, had three ment law- County, *4 The trial Mississippi. court set first, Farese, represented yers. Steve County the case for trial in Lee on October for them few months before with- 3, 2005. separate drawing due to “two irreconcil- trial, September 28, On the eve withdrew, conflicts.” Farese able After request Thome made final one for continu- court set a trial for March date ance “due to in his family. illness” He the time until From Farese withdrew sev- indicated that he was not prepared for trial, days rep- eral the Salts were in days five and needed “additional attorney, resented second Michael time in which to for prepare the trial of Thorne. this matter to defend properly this case.” During attorney, his time as the Saltses’ very day, next the record shows that requested Thorne and received number terminated the Saltses Thorne as their request first of continuances. The cited attorney, citing opinion “difference discovery need to obtain materials way ought this represent- case be Farese, case, complexity from of the ed.” pretrial hearing, At a the Saltses potential retain an expert need to clarified that “difference opinion” this and third related of preparation accountant. second re- to Thorne’s lack for months, trial. quests, following They filed in the ex- informed the Court that attorney subpoenaed Thorne had not plained “this has not been witnesses or properly prepared ... otherwise their case. prepare able due to other litigation involving these defendants.” In Despite the decision to Saltses’ fire request, the third specifically the Saltses Thorne and lack prepara- his admitted their right speedy waived to a trial. In tion, judge the trial indicated at pre- granting this third the trial request, trial conference he grant would not 27, 2005, set the case for trial on June any further pro- continuances and would though it noted that the event the “[i]n ceed with the trial date of scheduled Octo- renovation Courthouse has not been ber 2005. When asked whether he trial, completed by set the date for the would allow the time at least to will case to a later continued date.” counsel, retain new the trial judge de- murred: requested June an-
On Thorne continuance, Now, light of I problem other in a need to don’t what the know is. his again, “travel[ ] Florida with Wife to seek And I don’t care what the prob- my for a medical lem prerogative treatment serious condition.” is. That’s not relationship The motion noted that Thorne had look into “also between attor- neys been advised that the renovations to It me and their clients. has taken [wejre County neighborhood Prentiss still to eight Courthouse six under construction the use of months to at a trial setting arrive for working wouldn’t even been defendants
this, things entirely not because did, of that had portion during but in some those defendants the business the courthouse fact that to do an conflict of times. There’s obvious being remodeled County Prentiss attorney It’s obvious that one interest. whatever, have didn’t a court- we represent one defendant and should case, finally it set try but this room shown argue they haven’t should panel coming a venire for trial. have my working defendant was and, thoughts Monday about in on time. particular at that So there’s there case, you can aban- continuance interest, and conflict of obvious Any attorney who comes that. don knowing gone prosecution this case has that it is this late date must assume it at investigating years trial, going to con- because I’m certainly have known would it. tinue time time which one of them was able to retain were in the end The Salts lawyer one in the business. And active counsel, Waide, continues to Jim who new point finger at very can’t well one proceeding. them this *5 represent in at and not the other one and defendant the trial was scheduled morning On say, my—for might say I example, well and jury was selected begin—before Mr. years, the last three or four Salts arguments— opening and before sworn business, working has been outside dismiss, or in the filed motion to Waide in the busi- hasn’t even been involved alternative, a to continue.2 Waide argu- it’s hard make that ness. But argued “[t]here that is an obvious conflict representing ment both. Defendants,” in interest between the they were both light of fact inquire The trial court declined to further in charged with embezzlement connection alleged con- into the circumstances of this business, family both but denied with flict and denied the motion to of interest any knowledge or of embez- embezzlement sepa- based on need to obtain continue Further, time “during various zlement. counsel, apparently believing rate periods operated one Defendant the busi- previously waived Saltses during times the other ness other After of the con- disposing interest. operated Defendant the business.” issue, proceeded flicts the trial court in- elaborated on this conflict of Waide try jury select the the case. morning in court the of the trial: terest trial, At the Saltses were each convicted honor, case Your the indictment embezzlement and each four counts It charges charges embezzlement. both years imprisonment were sentenced to ten There’s defendants embezzlement. case, prison. in Mississippi state discovery extensive boxes of materials, anything but I can’t see charged is identifies which defendant petition B. The Saltses’ habeas
with embezzlement at which times. And trial, at After the Saltses were convicted proof know that the is going also they appeal Mississippi filed direct goes years, various on for show pub- in a Appeals, but times the Court which resulted years, at various one of immediately voir indicates that dire. 2. The state-court trial record argument court held on the motion oral direct trict opinion.3 appeal, findings On fact for clear lished error “ they novo, and its de raised both claims now conclusions of law ‘apply- Saltses (1) proceeding: ing in this in- the same standards to the advance habeas state court’s ”5 stemming assistance of counsel decision as did effective the district court.’ (2) representation, petition subject ineffec- Saltses’ the height- stemming assistance of counsel from ened tive standard of review under the Anti- continuance, trial court’s of a Terrorism denial and Effective Death Penalty (AEDPA).6 The state court denied relief on both Act prohibits AEDPA habeas relief petitioned adjudication claims. Missis- unless the of the claim (1) review, sippi Supreme Court for and their either in a “resulted decision that was opinion. to, petition contrary denied without or involved unreasonable of, application clearly established Federal remedies,4 After exhausting their law, the Supreme determined Court petitioned the Saltses for writ of habeas States,” United “resulted in a corpus the United District States decision that was based on an unreason- the Northern of Mississippi. District able determination of the light facts in magistrate judge A reviewed their petition presented evidence the State court recommended that the district proceeding.”7 issue writ based their conflict-of- interest claim. The district court consid- “A state court decision is ‘con objections parties ered from both and then trary to clearly ... precedent established adopted judge’s the magistrate recommen- if the state applies a rule that con *6 The district court thus granted dation. governing tradicts the law set forth in [the petition the Saltses’ on their repre- Supreme may cases.’”8 It Court’s] also claim but not their sentation denial-of-con- be contrary precedent to established if appealed tinuance claim. The State from “the state court a confronts set of facts ruling. district judge’s the The Saltses indistinguishable are materially from cross-appealed, arguing they were en- decision of. [the Court] and to of titled relief on both their claims. nevertheless at a arrives result different [Supreme precedent.”9 from Court] It is II. of Standard review an unreasonable of application
A Habeas standard review of precedent “if state the court identi requests In reviewing governing legal for federal fies the correct rule from relief, habeas reviews unreasonably [the] this Court the dis- Court’s ap- cases but Salts, Thaler, 215, (5th 984 So.2d 5. 3. 1050. Wooten v. F.3d 598 218 Cir.2010) Quarterman, (quoting Harrison v. 419, (5th Cir.2007)). 496 F.3d 423 The State its 4. conceded in answer that the remedies, Saltses exhausted state § 6. See 28 U.S.C. therefore waived on exhaustion 2254(b)(1), (3); grounds. § See 28 U.S.C. 2254(d)(1), (2). Johnson, (5th 7. 28 U.S.C. Bledsue v. F.3d 188 254 1999). Cir. The State’s waiver is understanda- as, Quarterman, ble, assertion, contrary 8. Wallace v. 516 F.3d to the dissent’s the 354 (5th Cir.2008) (quoting Taylor, Williams v. discussed the issues raised in their Arkansas, petition, including Holloway S.Ct. (alteration (2000)) Wallace). L.Ed.2d 389 U.S. S.Ct. L.Ed.2d 426 (1978), in the their briefs to state trial court appeals. Taylor, and court of 529 U.S. at S.Ct. 1495. filing in the electronic court malfunction particular it to the facts of plies (ECF) granted The district court system. requires us to case.”10 AEDPA prisoner’s time. request more State’s findings of that the state presume re- petitioner are correct “unless fact district court extended Because the by clear and con- presumption buts F&R, object its to to the State’s deadline vincing evidence.”11 timely unless filing the district extending abused its discretion “qualified-waiver” No standard
B. party to extend deadline.13 When moves here. applies review Rules Federal provided a deadline argue that should The Saltses we has after the deadline of Civil Procedure a different standard review apply may grant passed, the district case because it failed appeal State’s party if the good motion “for cause ... timely object magistrate judge’s to ne- failed act because of excusable (F&R). findings and recommendations proce- glect.”14 leading A treatise on civil object to timely failure This Court treats enjoys judge dure district “[t]he *7 court did not appeal—and to thus We find that district right waiver” of granting vary to of re- abuse its “broad discretion” we decline our standard four-day exten- request conclude that the State’s view—because we to objections timely. prejudice the F&R sion. The record reflects no to were State’s delay, nor is objections four-day filed to the Saltses The State its the F&R de- deadline, any at there indication that the State’s days appointed after the four layed any pro- had on the sought response impact time it leave of the also faith no of bad filing. ceeding. to the time There is evidence enlarge district court part. argue delay cited reason for a on State’s The Saltses The State as its Conn., v. Indem. Co. 465 F.3d at 1495. Travelers 10. Id. 120 S.Ct. (5th Cir.2006). Cockrell, (5th 274 F.3d 11. Valdez Cir.2001) 2254(e)(1)). (citing § 6(b)(1)(B). 14. Fed.R.Civ.P. 28 U.S.C. Ass'n, Wright Douglass 15. v. United Servs. Auto. 12. See Miller, Pro- & Practice Federal cases, Cir.1996) banc). including (5th (en (collecting 79 F.3d cedure cases). number of Fifth Circuit enlargements We review time Id. Adams district court for abuse of discretion. delay objects was within where that the State’s its con- to a multiple trol, representation), that the onus was on the State to Cuyler the other from (which document ensure that its electronic governs Sullivan21 multiple-repre- true, may This properly. been filed but sentation objec- situations where it does not an of discretion raised). render abuse tion was judge’s the district determination joint- state court denied Saltses’ . Thus, neglect State’s excusable. we representation ineffective-assistance claim timely objected conclude that the State to (1) because it found that: the Saltses had qualified the F&R to find a and decline right waived their conflict-free repre- to right appeal. waiver of the sentation, they prove failed to an actual conflict of stemming interest from representation III. Joint joint representation. The state court’s Multiple of criminal representation de- first rationale—waiver—was an unreason- may fendants them of their deprive Sixth able determination of in light the facts right repre- Amendment to counsel. Such “ evidence in the state-court record. The may ‘prevent attorney sentations from second rationale—failure demonstrate challenging prej- the admission evidence an actual conflict of interest—was contrary perhaps udicial to one client but favorable clearly law. established another, arguing at the sentenc- from ing hearing the relative involvement and
culpability of
in order
A.
his clients
to mini-
The Saltses did not waive
mize the
one
culpability
emphasizing
right
counsel.
”17 may
preclude
of another.’
It
also
Mississippi
Court of Appeals
attorney
“exploring possible
defense
held first that
any
the Saltses had waived
plea negotiations
possibility
of an
objection
joint representation.
to the
This
agreement
testify
prosecution.”18
for the
holding was an unreasonable determina
Despite
dangers,
these
tion of the
light
facts
the evidence
joint
long ago
representa-
held
presented in the
proceeding.22
state-court
tion of criminal
“is
per
defendants
se
When the Saltses
violative
moved
continue the
guarantees
of constitutional
of ef-
light
case in
joint-representation
of a
fective assistance
con-
of counsel.”19 Two lines
interest,
judge
flict of
of cases
to a
the trial
denied their
are relevant
determination of
when a
because of his “recollection”
representation deprives a de-
right
fendant of his
to counsel so
Saltses had waived
as to
*8
require reversal
his conviction:
conflict.23 The
wholly
of
one de-
record is
devoid of
rives from
Supreme
the
Court’s decision in documentation or
of
purport-
evidence
this
(which
waiver,
Holloway v. Arkansas20
ed
applies
by
the
appeals
noted
state
States,
153, 160,
335,
1708,
17. Wheat v. United
486 U.S.
21. 446 U.S.
100 S.Ct.
64 L.Ed.2d
1692,
(1988) (quot-
(1980).
108 S.Ct.
court,24 court, In a waiver on the “recollec- finding and even the based the district judge—which More- tions” the trial he later proceeding. in this respondents over, trial, trial judge’s record corroborating the end recanted—with no evidence, had neglected of the Saltses’ waiver the state court appeals “recollection” substantially. post-trial mo- changed At indulge Court’s command to Supreme hearing, judge averred against tion “every presumption” reasonable failed to raise a counsel had the Saltses’ waiver. concerns, including potential
number of
interest, in
At
advance of trial.
conflicts of
B. The state court’s denial
said,
judge
“I don’t recall
point,
contrary
claim was
Saltses’
particular argument concerning the
any
clearly established law.
There was some dis-
interest.
conflict of
alternative,
In
appeals
the state
severance,
which I de-
cussion about
joint-representa-
court denied
Saltses’
nied.”
tion claim for failure to
an
demonstrate
Despite
complete lack of evidence of
ap-
actual conflict
interest.
court
waiver,
appeals court neverthe-
the state
law,
Mississippi
“a
plied
concluding that
that the
waived
less concluded
inquiry
court need conduct an
into the
right
representation.
their
conflict-free
propriety
representation
solely
This determination rested
when an actual conflict has been shown.”27
and “averments” of
earlier “recollections”
applied
a rule that
thus
and,
judge
incredibly,
the trial
somewhat
directly
controlling Supreme
conflicts with
course,
counsel for the State. Of
rendering
precedent,
Court
its decision
position on the matter has also
State’s
under
contrary
law
28 U.S.C.
changed;
now concedes
“the state
2254(d)(1).
rule,
Under the
correct
in its
determination.
erred”
waiver
joint-
relief on
Saltses are entitled to
Given
lack of
evidence
supporting
representation ineffective-assistance claim.
judge’s
the trial
record and
about-
issue,
face on the
this conclusion
contrary
The state court’s rule ivas
of fact.
unreasonable determination
Supreme
precedent.
Court
Mississippi
court’s waiver de
contrary
begin,
To
spe
termination was also
law:
we consider the
cifically,
“high
proof
multiple-representations
Court’s seminal
standard]
rights
precedents: Holloway
the waiver of constitutional
[set
Arkansas
Cuyler
forth
Johnson v.
v. Sullivan. The Court’s decision
in]
Court
Zerbst,
Indeed,
represents
“an
Zerbst.”25
automatic re
“
‘indulge
applies
reiterated that courts are to
ev versal rule”
“where counsel
ery
his
presumption against
represent
reasonable
waiv
forced to
codefendants over
rights.”26 timely objection,
er’ of fundamental constitutional
unless the trial court has
Zerbst,
("A diligent
Id.
at 1062
search
the rec-
U.S.
S.Ct.
*9
any
ord has
revealed
discussion
Kennedy,
not
whether
(citing Aetna Ins. Co. v.
301 U.S.
809,
of
of
made or waived
389, 393,
(1937);
conflict
interest was
57 S.Ct.
477 only inquire no In propriety that there is conflict.”28 need into the determined of a words, timely joint trial counsel representation other where when actual con- of possible raises conflict interest flict has been shown.32 noteWe that the court, reversal automatic where apply court did decline to appoint separate to either judge “fail[s] it found because that Waide’s adequate steps or to to ascer- counsel take untimely or dilatory pur- was made for risk too tain whether the remote Rather, that, poses. held categorically, separate warrant counsel.”29 “a need inquiry court conduct an into the of a propriety representation only Court Supreme subsequently actual when an conflict has been shown.”33 clarified, however, that Holloway’s auto matic does not situa apply reversal rule appeals The state court’s decision was timely tions where counsel defense fails to contrary to law it wrongly because held object multiple to a In representation. always that a defendant must show actual Sullivan, Cuyler v. Court Supreme conflict, even where the trial court failed to Holloway’s “declined to extend automatic investigate counsel’s motion.34 In reversal rule” to a situation “[nei where words, other the state court held that it is anyone objected ther counsel nor else to never bring sufficient a defendant to Indeed, multiple representation.”30 conflict; the court’s attention potential objection, “absent dem defendant must always he must show an concretely actual actually onstrate ‘a conflict interest conflict. This stated directly rule conflicts affected the of his adequacy representa Court’s decision Hol- ”31 tion.’ loway, possi- which addresses itself court,
Here,
potential
appeals
bility
the state
con
or
conflict.
Hollo-
trary
court
Holloway,
way
spoke
held that a trial
judge’s duty
Court
the trial
Taylor,
122
propriety
joint rep-
28. Mickens v.
535 U.S.
the trial court into the
(2002) (discuss-
resentation.”).
S.Ct.
“to
from
refrain
or
by insisting,
an
to more
opportunity
accused
of defense counsel
do
defense
un-
indeed,
suggesting,
conclusory
than make
representations.”39
concurrently represent
inter-
words,
to
dertake
the trial court’s failure to
In other
from
of his
might diverge
those
ests which
investigate
conflicts
potential
client,
of that
possibility
when the
first
may
attention
leave the
brought
to its
home to the court.”35
brought
is
divergence
specific
particularized
record devoid of
a conflict.
evidence of such
discus-
subsequent
Court’s
its
demonstrate that
Holloway
sions of
argues
The State nevertheless
that the
a
require
reversal rule does not
automatic
implicitly applied
state trial court
Hollo-
Indeed, in both
actual conflict.
showing of
way, and
because it
inapplicable
found
Mickens, the Court reiterated
Cuyler and
dilatory.
found
motion to be
Waide’s
Con-
Holloway
simplicity:
in all
rule
its
owe
sequently,
argues,
the State
we
defer-
requires
to
“Holloway
state trial courts
decision,
may only
to
grant
ence
timely objections
multiple
investigate
to
if
appli-
habeas
it involved
unreasonable
Cuyler
in
The Court
representation.”36
Holloway.
cation of
do not agree.
We
that,
timely objection
did
absent a
explain
First, it
not at all clear that
is
representation, “nothing ...
multiple
to a
potential
to
investigate
failure
initiate
requires state courts
themselves
a
finding
conflict rested on
Waide’s
rep-
inquiries
propriety multiple
into
Rather,
dilatory.
the judge
every
But
resentations
case.”37
believed, incorrectly,
previous-
he had
nothing
Holloway
to alter
holding does
ly
the conflict and the
addressed
rule—reiterated
the Court
in Mick-
to conflict. At
waived
“creates an automatic reversal
ens—which
motion, the
hearing
parties
on Waide’s
rule
... where defense counsel is forced
disputed
support in the record
for such
timely ob-
represent codefendants over his
requested
a waiver and Waide
that his
jection, unless the trial court has deter-
testify,
clients be
on the
put
stand
that there
no conflict.”38
mined
point
judge
stated:
subsequent
In neither of these
decisions
Now, if
going
hearing,
we’re
to have a
Hol-
did the
hold that the
Court
put
Thorne
going
we’re
Mr.
on the
showing
loway
operates
rule
stand, too, and find
what the
out
discus-
to hold
actual conflict. This makes sense:
My
sion
recollection is
was.
that [the
protections
the.
otherwise would vitiate
Saltses’ waiver
this conflict of inter-
Holloway
Holloway's per se rule. The
open
est] was aired
chambers
that,
recognized
where a trial court
court,
this is another of
the last-
investigate potential
has failed to
attention,
going
minute tactics—I’m not
brought
grant
of interest
to its
continuance,
may
conclusively
severance,
or anything
record
reflect
By
investigate
poten-
going
try
conflict.
else.
it.
failing
We’re
484-85,
Holloway,
(emphasis
35.
435
S.Ct.
Id. at
U.S. at
98
37.
propriety
joint
of a
representation only
beyond
Nor can Neal be read
an actual
there,
when
conflict has been shown”— situation before the Court
to stand
that,
appeals
applied
proposition
the state
a rule di-
for the
to grant habeas
relief,
rectly contrary
Holloway’s imperative
always
habeas court must
deter
investigate
state trial
legal
courts
mine that the relevant
tests could not
objections
representation.
reasonably applied
In oth- have been
by the state
2254(d).
Taylor,
40. 28 U.S.C.
require,
2254(d)(l)’s
§
rules it
applied legal
That is sufficient to remove
a state court
assume
rules
not,
They
whether such
to relief.
need not also show
and then ask
bar
did
support
the result.
in-
reasonably
appeals
court’s decision
could still
that
state
however,
run afoul
reading,
would
an
application”
That
volved
“unreasonable
that, where
command
Supreme
Court’s
law.49
such
test,
apply
legal
a state court does
Accordingly, as the Saltses have demon-
by a state
“our review is not circumscribed
Mississippi
Ap-
Court of
strated
court conclusion.”46
“contrary to” estab-
peal’s decision was
Neal to the case
Indeed,
applying
Supreme
they may
precedent,
lished
Court
ignore
text of AEDPA.
us would
show,
they
relief if
can
de novo
obtain
not be
habeas relief shall
statute states
review,
“in
viola-
they
custody
are
adjudica-
state court’s
granted unless the
or
or treaties
tion of
Constitution
laws
con-
tion
in a decision that was
“resulted
United States.”50
to,
or involved
ap-
trary
unreasonable
of, clearly
Federal
plication
established
(3) The
are entitled to
”47
Court,
in the
....
Supreme
law
under
Holloway.
relief
Tay-
v.
Williams
AEDPA case of
seminal
lor,
Holloway’s
Cuyle'ds
rule—not
actual-
provide
need to
these two
stressed the
independent
standard—controls
the Saltses’
grounds
separate
claim
be-
meaning.48
joint-representation
in this case
The Saltses have shown
Smith,
534,
510,
2254(d)(1)
added).
Wiggins
(emphasis
§
539
47. 28 U.S.C.
46. See
v.
U.S.
2527,
(hold-
(2003)
S.Ct.
L.Ed.2d
123
156
471
analyzed
ing,
only inade-
where state court
404,
529
120
48. See
U.S. at
S.Ct.
Strickland,
quate performance prong of
de
prejudice prong
Court's review of
was
Williams,
412,
U.S.
120 S.Ct.
49. See
529
Beard,
novo);
Rompilla v.
U.S.
see also
545
("Under
2254(d)(1),
may
§
1495
the writ
is-
374, 390,
360
125 S.Ct.
162 L.Ed.2d
following
if
sue
one of the two
conditions
"[bjecause
(2005) (holding,
courts
the state
adjudication re-
is satisfied—the state-court
they
representation adequate,
never
found the
(1)
contrary
in a
sulted
decision
'was
...,
prejudice
we
reached the
and so
issue
law,
clearly
...
as deter-
established Federal
Wash-
[v.
examine this element of Strickland
by
Supreme
United
mined
Court of the
ington, 466
U.S.
104 S.Ct.
States,'
...”);
ap-
(1984)]
an unreasonable
claim
'involved
L.Ed.2d 674
de novo
Quarterman,
clearly
523-
plication
Pondexter
F.3d
Federal
...
established
(5th Cir.2008) (finding Wiggins
law,
and Rom-
Supreme
Court
as determined
"
changed
pre-
pilla
law after Fifth Circuit had
(alteration
original)).
the United
States’
court,
viously
relying Neal
district
reversed
review,
Puckett,
performing
de novo
Williams,
2254(a);
see
U.S.C.
also
rendering
inapplica-
law-of-the-case doctrine
395-96,
(analyzing
Waide on this elaborated motion interest, potential conflict of trigger- thus trial morning was scheduled to ing judge’s the trial under duty Holloway begin: to either allow for separate counsel or honor,
Your indictment in this case investigate further to ensure no conflict charges It both charges embezzlement. existed.52 length
51. The district court considered at
an-
this issue because we
conclude
Waide's
joint
representation,
other
pretrial
independently
motion was
sufficient.
Farese,
by attorney
this one filed
Saltses'
original
Shortly
pro-
trial counsel.
after the
argue
52. The state does not
that this conver-
ceedings began,
moved
Farese
to withdraw
morning
sation
trial was
itself a
representation, citing,
from the
without elabo-
Holloway hearing,
appeals
nor did the state
ration, “two irreconcilable
conflicts.”
pretrial
court conclude that this
conversation
district
court found
this motion was suffi-
"investigation”
potential
was sufficient
trigger
duty
cient
court's
to inves-
Holloway.
under
tigate
Holloway.
under
We need not consider
For
jury
selected and sworn.56
did
urges
Waide’s
State
Waide,
opportunity he
this was the earliest
investigate under
duty to
trigger a
not
representation.
object
not
had to
motion was
Holloway because the
that the
timely.
It is true
pre-
than the
important
more
Perhaps
un
“[w]hen
clarified
motion in this case
timing
cise
of Waide’s
separate
timely motion for
there is
indication whatever
is that
made,
holding
dilatory
our
purposes,
dilatory purposes.”
it was “made for
ability to
the trial court’s
impair
does
joint repre-
objected
the Saltses’
Waide
to such tact
who result
with counsel
deal
possible opportu-
sentation at the earliest
*14
sup
record here does not
But the
ics.”53
appeared in
Mon-
nity:
he
court the
when
motion was
port
conclusion Waide’s
day
the
retained him. The
after
Saltses
dilatory
untimely motion ... made
“an
that the
re-
record here indicates
purposes.”54
Thursday,
that he
tained Waide
case,
reviewing their
Holloway
spent
did not
the weekend
Court in
Supreme
of
including seventeen boxes
documents.
phrase “untimely
the
mo-
explicitly define
promptly
determined
that the Salts-
dilatory purposes.”
...
Waide
tion
made
that,
conflicting
brought
However,
in that
es
interests and
Court did note
had
it
to the
attention when
case,
objections to
all of the defendant’s
Monday morning.
timely,
opened for business
were
representation
Moreover, although
rep-
morning trial was
the Saltses were
a motion made on the
period prior
two-year
resented for
begin,
jury
before
was
scheduled
trial,
previous
in
is
in which time their
The motion
empaneled.55
continuances,
is no
filed a number
there
distinguish
difficult to
from Waide’s motion
attorney
indication in
record
the Saltses
in this
Like
defendant’s
case.
delay.57
were
objected
morning
themselves
the source
Holloway, Waide
Rather,
delays
were
the record reflects
begin,
trial was scheduled to
486-87,
Holloway,
Holloway,
55.
Court described
53.
which to commence a new
L.Ed.2d 263
10,
Holloway,
58. See
Michael and Marie Salts were 9, requested a with their On June the Saltses sec- of embezzlement connection collected ond Thorne said he had been They funeral-home business. continuance. properly for trial “due kept prepare for themselves funeral insurance unable customers, litigation involving many of them to other these defen- payments from He need poor, policies again possible insurance dants.” cited old whose 2254(e)(1). ing § quarrel majority's do not with the resolu- evidence. See Valdez Cockrell, 941, Cir.2001). claim, (5th process tion of the due nor with its F.3d finding conclusion that the state court’s any objection representation per- requested waiver 2. The State Farese not 2254(d)(2). was under until the obtained unreasonable mitted to withdraw Saltses majority Saltses should have added that new counsel. The Saltses were ordered overcoming appear September with bore the burden of the state new counsel 29, hearing. at 66. finding convinc- Id. court’s waiver clear and 2005, September 6, he setting for an accountant and said could not deadlines for if adequate assistance the case discovery render pretrial July motions The state did not were not continued. August respectively. parties Both object request, granted. and it was to this were explicitly ordered to all “file motions 11, Trial was rescheduled for October (1) (2) venue, having change to do with (3) discovery, admissibility evidence, limine and other matters on or September requested On the Saltses Day before the 1st of August, a repeated third continuance. Thorne his [they] shall be deemed waived claim to prepare that he had not been able court.” properly litigation involving due other defendants, these and he that he said could discovery court extended the dead- adequate legal not render assistance ab- line in response agreed-to to an request by time, sent continuance. This the state Defendants, which was “due to medical opposed. The state observed emergency.” It also extended said it was the third date and risked August deadline to 5. Defendants filed impairment real of the prosecution light their list on August witness 3. Thorne age of the of the victims would who serve filed various motions for the Five six witnesses. victims deadline of August including motion ranged sixty-five years eighty-one venue, for change produce motion to material, age, and each victim awas records, sealed a motion produce Nevertheless, essential witness. the court grand jury list, dismiss, a motion to and a granted a continuance. Trial was next motion discovery of additional items. February scheduled for 2005. It was On August day before the motion however, again, newly continued after the hearing, the again Saltses moved for con- assigned judge recused himself. tinuance, the sixth continuance and the Trial next scheduled June fifth at request. The motion said proviso might if be continued *17 Thorne’s father had seriously become ill renovation the of courthouse was not com- in hospital, requested was the plete by the trial date. June On the delay of hearing. the motion The court continuance, Saltses moved for a fifth the motion, granted the continuing the trial request. fourth at said their Thorne that and setting the motion for hearing Sep- he leaving would be town on June to tember 6. travel to Florida for to seek his wife medi- The court granted the Saltses’ motion
cal treatment. He also he had said heard for a transfer of venue and a new trial that set the courthouse was still undergoing date—the seventh—of October renovations.3 state countered that it and a new for “all pretrial deadline mo- willing County to assemble a Prentiss September tions” of jury neighboring in a if “or such motions county, even the County and matters shall be Prentiss courthouse was deemed waived unavail- court,” able, the offering both objections parties and reiterated its to fur- third delay, noting motions, ther deadline for pretrial that the oldest victim after a eighty-two. granted pretrial was now The court a number of been motions had dealt fifth continuance and scheduled trial for with. Ultimately request. the trial would held in a fendants' it, delaying neighboring county, further at De- period over a of sever- contin- ment of this case seventh moved Saltses very in the years. to illness al The defendants from “due September
uance family.” every to raise beginning opportunity had counsel’s immediate Defendant in time as question “additional of conflict of interest requested Thorne also the mat- this They for the trial of were prepare to between the defendants. He did this case.” entire properly ter to defend counsel for the represented motion, previous he in day in this as had virtually not of until period time motions, repre- be unable say he would began. additional without sent defendants Waide, great I have empathy Mr.
time. you having stepped to this case at fired instant, like September last but circumstances On Thorne, opinion that, of citing entering “a difference of case kind way represented.” has play this case should be the ball where lies. What Waide, Friday, in- September Jim that time in this happened up On ap- attorney, entry your new filed an according theory stance nevertheless, Monday, morning unfortunate, but pearance. On case is trial, after final you person- a week the third tell the Salts that I almost can deadline, a motion ally motions Waide entered that Mr. Thorne file mo- insisted continue, tions, that there arguing dismiss or did he respond then he, “an interest” be- obvious motions that I insisted with him that argued change tween defendants. He if he ask for a of venue wished to attorneys would be able separate Finally each that he do did. And that. he months, working argue period his client not been this went on over during period, days at business relevant for that matter. This not weeks argument Waide could not make this long but on for a time .... went denied counsel. trial court period of time that we’re talk- Over part recollection based on its know ing any about I do not reason any conflict. Saltses had waived could not filed. motions have been appeared The court to be said during set are various dates aside There another last-minute tactics—I’m every year dispo- of the calendar for the severance, grant a contin- going civil All sition of criminal and matters. anything going uance or else. We’re these matters could have been raised try it. me six in an It’s taken months way time in advance this. And *18 of thing effort to courthouse get to the I suppose candidly quite I insisted Waide, as it is. And Mr. I understand go this case to trial. And I think that’s you just have come into this case. simply the my responsibility, because of that, Because that’s reason I of the that it on the and it fact had been docket up took matter But we the at all. tried, get needed to and it tried did proceed are trial of the going to the
case. sufficiently I think I have discussed the trial. The Saltses were convicted at at min- attempted continuance the last the as a Waide re-raised conflict issue again ute. I think this should be viewed the ground response for a new trial. In I I in the context of what said earlier. judge said: motions, the personally filing directed of there they timely
I think I to make observa- and had been filed need some all, develop- record of this. But concerning, tions first of the would be total all objects things these done—I don’t recall multiple representation, were any particular argument concerning seeking appointment separate counsel, of conflict of interest. There was some the trial investigate must risk of severance, discussion about a which Otherwise, a conflict of interest. the ver denied. But the context of again, reversed, dict automatically must be be place, I when all this took think it’s prejudice cause presumed where counsel know, that, interesting you has timely objects joint representation. some bearing this. 484, Id. at S.Ct. at The Court failure, noted “that the in the face of the Vol. 10 at SR 797-98. representations made counsel weeks They appealed Mississippi Court again before the jury was Appeals, ineffective arguing assistance empaneled, petitioners deprived (1) joint represen- counsel based on ” guarantee of ‘assistance of counsel.’ Id.4 (2) tation, and of a denial seventh The Court held that reversal should be Mississippi continuance. of Ap- Court automatic, but its holding limited to situa published peals opinion affirming an (1) tions where the Salts, (Miss.Ct. conviction. 984 So.2d based on repre defense counsel’s App.2008). joint Regarding represen- sentation regarding a conflict. Id. claims, tation it found that the Saltses had joint objections representa- waived danger Court noted credit- tion, and held the alternative that under ing representation counsel’s of a conflict (and Sullivan, Cuyler Mississippi law could purposes lead to abuses “for the 446 U.S. 64 L.Ed.2d delay S.Ct. orderly obstruction of the conduct (1980)) required trial,” were aof but said that its fact-limited conflict, an actual rather than simply show holding “does impair trial court’s Salts, possibility of a conflict. ability to deal with who resort to So.2d 1061-62. untimely such tactics” “[w]hen separate dilatory counsel is made for
2. Supreme Court Precedents
Rather,
[,]
purposes.”
this case ...
“[i]n
cases,
prospect
Three
dilatory practices
pres-
none di-
rectly
point,
guideposts
486-87,
Id. at
ent[.]”
furnish
for the
representation
no ob-
raised
100
3.
Rules
Legal
a court
objection,
makes no
counsel
where
held,
Mississippi
Appeals
The
Court
poten-
inquiry
an
into the
need not initiate
that
finding,
as an alternative to its waiver
of interest unless
tial for a conflict
never
an ac-
“because
showed
reasonably
know that
or
should
“knows
interest, there
no need
tual conflict of
347, 100
exists.” Id. at
conflict
particular
by the trial
into the
inquiry
appeal or collateral
at 1717. On
S.Ct.
Salts,
propriety
joint representation.”
review,
object
who failed to
the defendant
at
984 So.2d
court addressed
trial
that
actual
at
must demonstrate
cited
primary
the two
cases
the Saltses
adversely
affected his
interest
brief,
State,
in their
So.2d 810
Smith
characterized Hollo-
defense. The Court
(Miss.1995),
State,
Armstrong
courts to
way
requiring
“state trial
(Miss.1990),
both of which
So.2d
objections
multiple
investigate timely
where there was an
reversed
verdict
Cuyler,
at
representation.”
446 U.S.
these
actual conflict of interest.5 It found
But
this was the in light of his
post-trial explanation that the motion was
obviously untimely and should have been
filed, all, by if at prior Thorne
previous Additionally, deadlines. the ma- jority opinion skips the proper analysis. America, UNITED STATES of Untimeliness is a state-court finding of Plaintiff-Appellee, fact, which the Saltses must rebut under AEDPA by clear and convincing evidence. 2254(e)(1). Cockrell, See Valdez v. RICHARDSON, Jr., Dale Allen (presumption F.3d of correctness Defendant-Appellant. applies to state findings, explicit both No. 11-40244. findings findings which can implied law). from explicit conclusions of This United Appeals, States Court of they did not majority’s do. The conclusion Fifth Circuit. the state court’s decision was “con- trary” depends crucially on March the majority’s own almost-undefended fac- finding
tual timely, the motion was
finding that requires ignore it to only years of continuances and missed preceded motion,
deadlines that but
also the trial explanation court’s extended
of the motion’s untimeliness.
The bottom line apply is that to Hollo-
way, the majority must conclude not day Waide’s motion on the of trial was
timely, but that the motion was so clearly notes F&R as Magistrate Judge’s “quali grant deny an exten- broad discretion to appeal: right fied waiver” sion,” stan- neglect” the “excusable object timely to a to be magistrate proven failure to dard is “intended has Profes- judge’s report quite application.”15 and recommendation bars in its elastic except upon grounds plain lay and Miller out a number party, Wright sors ..., attacking on appeal from factors relevant determination error (1) ..., factual proposed findings neglect”: possibility “the “excusable (2) conclusions, legal the other “the proposed prejudice parties,” but also court, ... im- accepted pro applicant’s delay the district and its length of the (3) party proceeding,” has been served on the “the reason pact vided consequences will delay with notice that such for the and whether it was within ,12 object movant,” ... result a failure control “whether in good has acted faith.”16 the movant Here, to find a “qualified we decline