                                                                   F I L E D
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 25, 2006
                                   PU BL ISH                     Elisabeth A. Shumaker
                                                                     Clerk of Court
                   UNITED STATES COURT O F APPEALS

                                TENTH CIRCUIT



 G LEN DA LE H A MM O N ,

       Petitioner-A ppellant,
 v.
                                                     No. 05-6158
 R ON W A R D ,

       Respondent-Appellee.



                  Appeal from the United States District Court
                    for the W estern District of O klahom a
                          (D.C. No. 04-CV-01007-HE)


Glen Dale Hammon filed a brief pro se.

James L. Hankins, Hankins Law Office, Oklahoma City, Oklahoma, for
Petitioner-A ppellant.

Jennifer L. Strickland, Assistant Attorney General for Oklahoma, Oklahoma City,
Oklahoma (W .A. Drew Edmondson, Attorney General for Oklahoma, and Laura
E. Samuelson, Assistant Attorney General for Oklahoma, on the brief), for
Respondent-Appellee.


Before H E N RY , SE YM OU R , and EBEL, Circuit Judges.


EBEL, Circuit Judge.
      Petitioner-A ppellant Glen Dale H ammon (“Petitioner”) was convicted in

Oklahoma state court of possession of a controlled dangerous substance (“CDS”),

possession of a firearm by a convicted felon, and possession of a firearm with a

defaced or mutilated serial number, for which he was effectively sentenced to

seventy years’ imprisonment. Petitioner filed a pro se 28 U.S.C. § 2254 habeas

petition challenging those convictions, which the district court denied. W e issued

a certificate of appealability on the issue of ineffective assistance of appellate and

trial counsel, and we now vacate the district court’s order denying § 2254 relief

and remand for an evidentiary hearing.

                                  BACKGROUND

I.    Factual Background

      On October 19, 2000, Petitioner w as driving through an Oklahoma City

suburb in a vehicle with his brother, Demarcus Hammon, as the passenger, when

Officer Hill of the Del City Police Department initiated a traffic stop of the

vehicle because the brake lights were not working. Officer Hill approached the

driver’s side and asked Petitioner for his license and proof of insurance. After

Petitioner stated that he had neither, Officer H ill returned to his patrol car to

confirm that information with dispatch.

      Once Officer Turner and Lieutenant Baker arrived as back-up, Officer Hill

again approached the vehicle to arrest Petitioner for driving without a license and

for an outstanding warrant. Officer Hill ordered Petitioner out of the car,

                                          -2-
informed him that he was under arrest, and placed him in handcuffs. Officer Hill

searched Petitioner’s person as part of that arrest and found nothing. Officer

Turner removed D emarcus Hammon from the car, performed a pat-down search of

him, and discovered nothing. Demarcus Hammon did not have any outstanding

warrants, but the officers did not release the car to him because his license had

also been suspended and the car w as not insured.

      Officers Hill and Turner thus conducted an inventory search of the vehicle.

The officers first searched the driver’s side of the vehicle and found nothing

there. In searching the passenger’s side, however, Officer Hill found a bag

containing thirteen to fourteen gravel sized brownish-white rocks located in the

cavity of the dashboard where the glove box would normally be located.

Subsequent tests revealed the rocks to be crack cocaine. Underneath the

passenger seat, the officers discovered a loaded semiautomatic handgun with a

mutilated or defaced serial number. 1 No other contraband was found inside the

car. At that time, Demarcus Hammon was arrested and searched, and the officers

discovered $260.00 in $20 bills on him.

      W hile in county jail, Glenn and Demarcus Hammon retained the same

defense counsel to represent them. At some point before trial, trial counsel

negotiated a plea bargain for Demarcus Hammon. Petitioner, unaware his brother



      1
        The gun was never submitted for fingerprint testing, allegedly because
Officers Hill and Turner had handled the gun.

                                        -3-
had pleaded, rejected a plea offer of fifteen years in prison and proceeded to trial.

      The State apparently sought to call Demarcus Hammon as a witness at

Petitioner’s trial, but it was unable to locate him. In its case-in-chief, the State’s

two main witnesses were Officers Hill and Turner, both of whom testified about

the stop and subsequent search as well as their opinion regarding whether the

amount of drugs found in the vehicle was for distribution or personal use. 2

W ithout objection from trial counsel, Officer Hill testified that, based upon the

amount of rocks found, the money found on Demarcus Hammon, the fact that

neither Petitioner nor Demarcus Hammon exhibited signs of being under the

influence of drugs, the absence of crack-use paraphernalia found in the car, and

the presence of the gun, the drugs found in the vehicle were for distribution— as

Officer Hill basically described, “the gun, the money, and the dope.” Officer

Turner testified to essentially the same facts and opinions as Officer Hill, but he

additionally testified, again without objection from trial counsel, that his opinion

that the drugs were for distribution was based on the fact that the Hammon

brothers were stopped in an area of town with heavy gang and drug activity.




      2
         The rest of the State’s evidence consisted of chain-of custody testimony
and Oklahoma State Bureau of Investigation agents’ testimony regarding the
testing of the contents of the baggie and the examination of the gun.

                                          -4-
      Petitioner’s trial counsel gave no opening statement. 3 He called only one

witness— Evan June Smith, Petitioner’s mother. M s. Smith testified that she

visited Petitioner in jail and that he told her the gun was not his and that he did

not know anything about the drugs. According to M s. Smith, Petitioner also told

her that, on the day he was arrested, he had planned to pick up Demarcus

Hamm on and then drive to her house. She further testified that the car driven by

Petitioner did not belong to her, Petitioner, or Demarcus Hammon.

      To rebut M s. Smith’s testimony about her son’s statement that the gun was

not his, the State confronted her on cross-examination with a letter Petitioner had

written to then-District Attorney Bob M acy, which was read into the record by the

prosecutor:

      M r. M acy, I am G len Hammon. M y birthday is January 17, 1976. I am
      accused . . . with my brother, Demarcus Hammon, . . . after being
      stopped in a car searched by officer [sic]. A firearm was found under
      the passenger side w here Demarcus Hammon was sitting. He confessed
      to the firearm on the spot. This information should be written in [sic]
      police report. W hy am I still charged with possession of firearm?
      Thank you for your time, respectfully yours, Glen Hammon.

At the conclusion of M s. Smith’s testimony, the defense called no other

witnesses, Petitioner waived his right to testify on his ow n behalf, and the defense

rested.

      3
        Petitioner’s counsel had reserved opening statement until prior to the
defense’s case-in-chief. W hen trial counsel began his statement, the State’s
objections resulted in a bench conference where the trial court explained the
difference between opening statement and closing argument. Petitioner’s counsel
decided to forego another attempt at opening statement.

                                         -5-
      Although the State could not locate Demarcus Hammon and thus could not

call him in its rebuttal case, it attempted to introduce Demarcus Hammon’s plea

paperwork. Specifically, the State wanted to read into the record a statement

from the factual basis for the plea in which Demarcus Hammon admitted under

oath that “I committed the crimes of possession of CDS and possession of a

firearm while a passenger in an automobile driven by my brother, Glen Hammon;

the gun was mine; the C DS belonged to both of us.” In response, Petitioner’s

trial counsel argued that if the factual basis for Demarcus Hammon’s plea was

read to the jury, then the jury should also simultaneously be informed that there

was an agreement between Demarcus Hammon and the State that Demarcus

Hammon would, in exchange for receiving a deferred sentence, 4 inculpate

Petitioner in the factual basis for his plea and testify against Petitioner at trial.

      The exchange that followed between trial counsel (M r. Jackson) and the

trial court is particularly relevant to this appeal:

      T H E C OU R T: I don’t see it in this portion of the paperw ork. The part
      where they discuss the plea agreement it says, “Is their [sic] a plea
      agreement?” And it says, “Y es.” A nd then handwritten in is -- w ell,
      typed in, “W hat is your understanding of the plea agreement?”
      Handwritten in, “I’m pleading guilty to Possession of CDS and
      Possession of a Firearm in exchange for a five-year deferred sentence
      . . . .”

      4
           Under Oklahoma law a “deferred sentence,” which is very favorable to a
criminal defendant, entails a probationary period of up to five years after which,
if the accused has complied with the rules and conditions of probation, the case is
dismissed without a criminal conviction and the record is expunged. See Okla.
Stat. tit. 22, § 991c.

                                          -6-
               M R . JA CK SO N: In exchange for that statement -- he’s saying
       in exchange for that statement he received consideration. In other
       words, he was motivated to the statement be given [sic]. W e have –
               T HE C OU R T: Well, he may or -- I don’t know.
               M R . JA CK SO N: W e have a right to inform the jury -- we have
       the right to inform the jury [sic] any agreements [Demarcus Hammon]
       had with the district attorney that the court approved. It’s like -- isn’t
       it like a jail house snitch or –
               T HE C OU R T: No, not at all. I mean, he’s merely pleading
       guilty and --
               M R . JA CK SO N: In considering [sic] of a five-year deferred.
               T HE C OU R T: Right.
               M R . JA CK SO N: If [Demarcus Hammon] had not inculpated
       [Petitioner], [Demarcus Hammon] would not have gotten [a five-year
       deferred sentence].
               T HE C OU R T: I don’t know. It doesn’t say in here [the plea
       paperw ork] that. I don’t know if that’s true or not. I don’t know.

At this point, trial counsel instructed the trial court that he had a conflict of

interest in this case because he had also represented Demarcus H ammon in

negotiating the plea bargain:

              M R . JA CK SO N: W ell, I have a bit of a conflict of interest,
       Your H onor, in that I was the attorney [for Demarcus Hammon] as well.
              TH E CO URT: That’s your --
              M R . JA CK SO N: And that’s something I need to --
       ...
              T HE C OU R T: W ell, I’m asking about your discussions with the
       State of Oklahoma. D id the State of Oklahoma say to you, Your Client,
       M r. Demarcus Hammon, must inculpate his co-defendant [Petitioner]
       in return for this recommendation of a five-year deferred [sentence]?
              M R . JA CK SO N: That’s correct.
              T HE C OU R T: You’re saying that the State of Oklahoma said
       that?
              M R . JA CK SO N: On the CDS charge. And it w as a negotiated
       matter, Y our H onor . . . .
       ...
              TH E CO URT: Okay. And you negotiated that with who?
       Paulette Stewart? She’s the one who took the plea.

                                           -7-
               M R. JACK SO N: I believe that’s right. And M r. Pate, I believe.
        There were –
               M R . SID ER IA S [Assistant District Attorney]: I asked M r. Pate
        about this matter and he has no recollection of it. That’s not to say it
        didn’t happen; its just to say he’s probably negotiated a lot of cases
        since then.
        ...
               M R. JACK SO N: Your Honor, there w as much discussion about
        this because -- I represented both of them, and we were getting close to
        a point during the negotiations where if their interest [sic] became
        adverse, I would have to -- certain decisions in terms of control. And
        the district attorney knew that. That w as part of the negotiation.

Despite this lengthy discussion, the State dropped its request to introduce

Demarcus Hammon’s statements, and the case was ultimately submitted to the jury

without Demarcus Hammon’s testimony or plea statements.

II. Procedural Background

        The Oklahoma jury convicted Petitioner of possession of a CD S (crack

cocaine) in violation of Okla. Stat. tit. 63, § 2-401; possession of a firearm by a

convicted felon in violation of Okla. Stat. tit. 21, § 1283 (Count 2); and possession

of a firearm with a defaced or mutilated serial number in violation of Okla. Stat.

tit. 21, § 1550 (Count 3). The trial court imposed a sentence in accordance with

the jury verdicts: twenty years on Count 1; fifty years on Count 2; and twenty

years on Count 3, with the sentences for Counts I and II to be served consecutively

to each other and concurrently with Count III— totaling a seventy-year prison

term.




                                          -8-
      The state court appointed Petitioner new counsel to pursue a direct appeal of

his conviction and sentences. O n direct appeal, Petitioner’s counsel raised two

errors, only one of which was substantive: 1) evidence adduced at trial was

insufficient to sustain the State’s burden of proof beyond a reasonable doubt; and

2) the Judgment and Sentence document incorrectly reflected a conviction under

Okla. Stat. tit. 21, § 1850 on Count III, when it should have read Okla. Stat. tit.

21, § 1550. The Oklahoma Court of Criminal Appeals (OCCA) affirmed

Petitioner’s convictions and sentences. Petitioner then filed an application for

state post-conviction relief, alleging, inter alia, that his trial counsel was

ineffective and represented conflicting interests and that his appellate counsel was

ineffective for failing to raise trial counsel’s ineffectiveness and conflict on direct

appeal. The state district court denied post-conviction relief. The OCCA affirmed

the judgment of the trial court on the ineffective assistance of appellate counsel

claim and found Petitioner had procedurally defaulted all of his other claims.

      Petitioner then filed a pro se petition for federal habeas corpus relief based

on the following grounds: ineffective assistance of trial counsel due to a conflict

of interest; ineffective assistance of trial counsel due to trial counsel’s

performance; prosecutorial misconduct for knowingly allowing perjured testimony;

and ineffective assistance of appellate counsel for failure to raise the proceeding

claims on direct appeal. Adopting the magistrate judge’s report and

recommendations, the district court denied all of Petitioner’s claims, including his

                                           -9-
request for an evidentiary hearing. W e issued a certificate of appealability with

regard to whether Petitioner received ineffective assistance of appellate and trial

counsel in violation of his constitutional rights and appointed counsel to represent

Petitioner in support of those claims.

                                    D ISC USSIO N

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

applies to this appeal because Petitioner filed his § 2254 petition after AEDPA’s

effective date. See W elch v. Sirmons, 451 F.3d 675, 682 (10th Cir. 2006);

M alicoat v. M ullin, 426 F.3d 1241, 1246 (10th Cir. 2005), cert. denied, 126 S. Ct.

2356 (2006). AEDPA strictly limits a federal court’s ability to consider issues on

habeas review that the state court deemed procedurally barred, see Smallwood v.

Gibson, 191 F.3d 1257, 1268 (10th Cir. 1999), or to grant evidentiary hearings, see

28 U.S.C. § 2254(e)(2). 5

       5
           Section 2254(e)(2) provides that:

       If the applicant has failed to develop the factual basis of a claim in
       State court proceedings, the court shall not hold an evidentiary hearing
       on the claim unless the applicant shows that—

       (A) the claim relies on—
             (i)    a new rule of constitutional law, made retroactive to cases
                    on collateral review by the Supreme Court, that was
                    previously unavailable; or
             (ii)   a factual predicate that could not have been previously
                    discovered through the exercise of due diligence; and
       (B) the facts underlying the claim would be sufficient to establish by
       clear and convincing evidence that but for constitutional error, no
                                                                        (continued...)

                                         - 10 -
I.    Procedural Bar

      The OCCA found that Petitioner had procedurally defaulted his ineffective

trial counsel claims pursuant to Okla. Stat. tit. 22, § 1086 by failing to raise them

on direct appeal. 6 Under AEDPA , we generally may not consider “issues on

habeas review that have been defaulted in state court on an independent and

adequate state procedural ground, unless the petitioner can demonstrate cause and

prejudice or a fundamental miscarriage of justice.” Smallwood, 191 F.3d at 1268

(quotations omitted). Here, we need not decide whether § 1086 is an independent

and adequate state procedural bar because we conclude that Petitioner’s allegations

are sufficient to establish that the bar should be excused on the basis of ineffective

appellate counsel.


      5
          (...continued)
          reasonable factfinder would have found the applicant guilty of the
          underlying offense.

 28 U.S.C. § 2254(e)(2)(A)& (B); see also Bryan v. M ullin, 335 F.3d 1207, 1214
 (10th Cir. 2003) (en banc).
          6
              Section 1086 reads:

          All grounds for relief available to an applicant under this act must be
          raised in his original, supplemental or amended application. Any ground
          finally adjudicated or not so raised, or knowingly, voluntarily and
          intelligently waived in the proceeding that resulted in the conviction or
          sentence or in any other proceeding the applicant has taken to secure
          relief may not be the basis for a subsequent application, unless the court
          finds a ground for relief asserted which for sufficient reason was not
          asserted or was inadequately raised in the prior application.

 Okla. Stat. tit. 22, § 1086.

                                           - 11 -
      Petitioner properly raised his claim alleging appellate counsel was

ineffective for failing on direct appeal to raise ineffective trial counsel due to a

conflict of interest. “Because the alleged deficiencies on appeal relate to trial

counsel’s conduct, we review the claims of ineffective assistance of appellate

counsel on their merits, along with the claims of ineffective assistance of trial

counsel.” 7 Boyd v. W ard, 179 F.3d 904, 914 (10th Cir. 1999). W e conclude that

if the facts are as Petitioner alleges them, then Petitioner is entitled to relief for

ineffective assistance of appellate counsel for failure to assert that trial counsel

operated under a prejudicial conflict of interest and appellate counsel’s

ineffectiveness is cause sufficient to excuse the state procedural bar to Petitioner’s

ineffective trial counsel claim. See Ellis v. Hargett, 302 F.3d 1182, 1186 (10th

       7
         Although the OCCA determined Petitioner to have procedurally defaulted
his claim alleging trial counsel was operating under an actual conflict of interest,
we must nevertheless

       review the merits of [M r. Hammon’s ineffective trial counsel claim]
       in order to determine whether he received ineffective assistance from
       his appellate counsel. Assuming he demonstrates ineffective
       appellate assistance, his procedural default will be excused and we
       may then review the merits of his [ineffective trial counsel] claim[].
       Notwithstanding the apparent circularity of this review , our ultimate
       inquiry is central and straightforward: is our confidence in the
       outcome of M r. [Hammon’s] conviction and sentence undermined by
       the fact that [his trial counsel operated under an actual conflict of
       interest].

Banks v. Reynolds, 54 F.3d 1508, 1516 (10th Cir. 1995) (citations omitted). Our
review in this regard is ultimately governed by the deferential A EDPA standard.
See 28 U.S.C. § 2254(d); see also M ayes v. Gibson, 210 F.3d 1284, 1288 (10th
Cir. 2000).

                                          - 12 -
Cir. 2002) (“A showing that a defendant received ineffective assistance of counsel

will establish cause excusing a procedural default.”). W e therefore proceed to

consider the merits of Petitioner’s claim challenging direct appeal counsel’s

representation.

II.   Ineffective A ssistance of Appellate C ounsel Based on Trial Counsel’s
      Conflict of Interest

      Only Petitioner’s claim involving appellate counsel’s failure to allege on

direct appeal that Petitioner’s trial counsel operated under a conflict is properly

before this court. 8 The district court denied Petitioner habeas relief on this claim

without conducting an evidentiary hearing. W e conclude that the district court

abused its discretion by denying Petitioner an evidentiary hearing. See Anderson

v. Attorney General of Kan., 425 F.3d 853, 858 (10th Cir. 2005) (“A district

court’s decision to grant or deny an evidentiary hearing in a habeas proceeding is

reviewed for an abuse of discretion.”).

      Although AEDPA strictly limits a federal court’s ability to grant an

evidentiary hearing, in this case Petitioner is freed from § 2254(e)(2)’s limitation

because he diligently pursued the factual basis for his claims in state court and



       8
          Petitioner argues on appeal that his appellate counsel also omitted a
claim that Petitioner was convicted in violation of Oklahoma law for two separate
crimes— possession of a firearm by a felon and possession of a firearm with a
mutilated or defaced serial number— based upon one act of possession of a
firearm . Petitioner did not raise this claim in his § 2254 habeas petition, and w e
therefore will not consider it on appeal. See M cLuckie v. Abbott, 337 F.3d 1193,
1200 n.3 (10th Cir. 2003); Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999).

                                          - 13 -
thus did not “fail[] to develop the factual basis of a claim in State court

proceedings.” 28 U.S.C. § 2254(e)(2); see also Bryan, 335 F.3d at 1214 (“If . . .

the petitioner did not fail to develop the factual basis of his claim in State court,

§ 2254(e)(2) is not applicable and a federal habeas court should proceed to analyze

whether a hearing is appropriate or required under pre-AEDPA standards.”)

(quotations, alterations omitted); see also M iller v. Champion, 161 F.3d 1249,

1253 (10th Cir. 1998). Consequently, Petitioner is entitled to an evidentiary

hearing on the issue of ineffective appellate counsel “so long as his allegations, if

true and not contravened by the existing factual record, would entitle him to

habeas relief.” Anderson, 425 F.3d at 858; see also M edina v. Barnes, 71 F.3d

363, 369-70 (10th Cir. 1995) (discussing at length the pre-AEDPA standard for

obtaining an evidentiary hearing). For the reasons set out below, we conclude

Petitioner has met this requirement. Therefore, contrary to the district court, we

conclude that Petitioner is entitled to an evidentiary hearing on his claim of

ineffective assistance of appellate counsel for failure to assert that trial counsel

operated under a prejudicial conflict of interest.

      A . Diligence in pursuing the factual basis for his claim s

      AEDPA precludes a federal habeas court from conducting an evidentiary

hearing on a claim that the habeas petitioner failed to develop in state court. See

28 U.S.C. § 2254(e)(2); see also Bryan, 335 F.3d at 1214. But “a failure to

develop the factual basis of a claim is not established unless there is lack of

                                          - 14 -
diligence, or some greater fault, attributable to the prisoner or the prisoner’s

counsel.” W illiams v. Taylor, 529 U.S. 420, 432 (2000); see also M iller, 161 F.3d

at 1253 (holding that § 2254(e)(2) does not apply where the petitioner “diligently

sought to develop the factual basis underlying his habeas petition, but a state court

prevented him from doing so”). “Diligence . . . depends upon whether the prisoner

made a reasonable attempt, in light of the information at the time, to investigate

and pursue claims in state court.” W illiams, 529 U.S. at 435; see also Cannon v.

M ullin, 383 F.3d 1152, 1176 (10th Cir. 2004). Here, Petitioner sought an

evidentiary hearing in his state-post conviction application proceedings, but the

Oklahoma courts denied his requests.

      W e note that “merely requesting a hearing in state court may not be enough

to satisfy the requirement that [a petitioner] diligently seek to develop a factual

basis for his claim.” Parker v. Scott, 394 F.3d 1302, 1325 (10th Cir. 2005). In

this case, however, Petitioner not only aggressively sought an evidentiary hearing,

he also put on some evidence in support of his allegation of his counsel’s conflict

of interest. Specifically, the state trial record reflects counsel’s concession during

trial that negotiating Demarcus Hammon’s plea bargain created a conflict of

interest in trial counsel’s joint representation of the Hammon brothers.

Accordingly, the pre-AEDPA standard applies to Petitioner’s request for an

evidentiary hearing. See M iller, 161 F.3d at 1253.




                                         - 15 -
      B.     Allegations, if true and not contravened, w ould entitle Petitioner
             to habeas relief

      Under the pre-AEDPA standard for granting an evidentiary hearing, we must

analyze whether M r. Hammon’s allegations, “if true and not contravened by the

existing factual record, would entitle him to habeas relief.” Anderson, 425 F.3d at

858. To obtain relief for ineffective counsel, a petitioner must generally show

both that his “counsel’s representation fell below an objective standard of

reasonableness” and “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland v. W ashington, 466 U.S. 668, 688, 694 (1984). “W hen considering a

claim of ineffective assistance of appellate counsel for failure to raise an issue, w e

look to the merits of the omitted issue.” Hooks v. W ard, 184 F.3d 1206, 1221

(10th C ir. 1999) (citation omitted). In conducting this review:

       [i]f the omitted issue is so plainly m eritorious that it would have been
       unreasonable to winnow it out even from an otherwise strong appeal, its
       omission may directly establish deficient performance; if the omitted
       issue has merit but is not so com pelling, the case for deficient
       performance is more complicated, requiring an assessment of the issue
       relative to the rest of the appeal, and deferential consideration must be
       given to any professional judgment involved in its omission; of course,
       if the issue is meritless, its omission will not constitute deficient
       performance.

Cargle v. M ullin, 317 F.3d 1196, 1202 (10th Cir. 2003). Consequently, in this

case, we must consider the merits of Petitioner’s claim that his trial counsel was

constitutionally ineffective because of a conflict of interest.



                                         - 16 -
      Because the OCCA reached and rejected Petitioner’s claim of ineffective

assistance of appellate counsel on its merits, we may not grant relief on that claim

unless the state court’s adjudication of it

       (1) 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) 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). See also M ayes, 210 F.3d at 1288 (indicating, in the context

of deciding whether the petitioner was entitled to an evidentiary hearing, that the

deferential AEDPA standard applies to our consideration of the merits). Although

the OCCA made its decision without granting Petitioner an evidentiary hearing,

that summary decision was an adjudication on the merits within the meaning of §

2254(d) because the OCCA determined that Petitioner did “not provide[] any facts

or arguments to establish his counsel’s performance fell below prevailing

professional norms [or] that the outcome of his appeal would have been

different,” and, therefore, that no evidentiary hearing was w arranted. In

reviewing the OCCA’s adjudication of Petitioner’s ineffective assistance of

appellate counsel claim, we consider the record as it existed before the OCCA.

See Bryan, 335 F.3d at 1215. 9

       9
         Although the deferential AEDPA standard under § 2254(d) applies to our
assessment of the state court’s decision to adjudicate the merits of Petitioner’s
claim without granting an evidentiary hearing, it does not apply to the district
court’s ultimate determination on remand of whether the facts established at the
                                                                       (continued...)

                                          - 17 -
          “To determine the applicable ‘clearly established’ law, we look to Supreme

Court precedent as it existed when the state court reached its decision.” Brown v.

Uphoff, 381 F.3d 1219, 1224 n.4 (10th Cir. 2004). A state-court decision is

contrary to clearly established Supreme Court precedents if it

          applies a rule that contradicts the governing law set forth in [Supreme
          Court] cases, or if it confronts a set of facts that is materially
          indistinguishable from a decision of th[e] [Supreme] Court but reaches
          a different result. A state-court decision involves an unreasonable
          application of th[e] [Supreme] Court’s clearly established precedents
          if the state court applies th[at] Court’s precedents to the facts in an
          objectively unreasonable manner.

Brow n v. Payton, 544 U.S. 133, 141(2005) (citations omitted).

      The Supreme Court has held that a “conflict itself demonstrat[es] a denial of

the ‘right to have the effective assistance of counsel.’” Cuyler v. Sullivan, 446

U.S. 335, 349 (1980) (quoting Glasser v. United States, 315 U.S. 60, 76 (1942));

see also W ood v. Georgia, 450 U.S. 261, 271 (1987); United State v. Bowie, 892



      9
       (...continued)
federal evidentiary hearing entitle Petitioner to habeas relief or to this court’s
review of that determination on appeal. See Bryan, 335 F.3d at 1216 n.7 (“[T]he
panel erred in applying the deferential review standards set out in 2254(d) and (e)
in reviewing [petitioner]’s claims that his trial counsel was ineffective.”); M iller,
161 F.3d at 1254 (“[B]ecause the state court did not hold any evidentiary hearing,
we are in the same position to evaluate the factual record as it was. Accordingly,
to the extent the state court’s dismissal of [petitioner]’s petition was based on its
own factual findings, we need not afford those findings any deference.”); Nguyen
v. Reynolds, 131 F.3d 1340, 1359 (10th Cir. 1997) (“[Although] [f]ederal courts
entertaining habeas petitions must give a presumption of correctness to state
courts’ factual findings, . . . [t]his presumption of correctness does not apply . . .
if the habeas petitioner did not receive a full, fair, and adequate hearing in the
state court proceeding on the matter sought to be raised in the habeas petition.”).

                                          - 18 -
F.2d 1494, 1500 (10th Cir. 1990). Furthermore, “[a] defendant who shows that a

conflict of interest actually affected the adequacy of his representation need not

demonstrate prejudice in order to obtain relief.” Cuyler, 446 U.S. at 349-50

(emphasis added); see also Bowie, 892 F.2d at 1500. An “actual conflict of

interest” cannot be demonstrated merely by “the possibility for conflict,” see

Cuyler, 446 U.S. at 350; nor may it be demonstrated by “the mere appearance of

impropriety,” Pool v. Armontrout, 852 F.2d 372, 375 (8th Cir. 1988). Instead, the

Supreme Court has held that the claimant must show “that his counsel actively

represented conflicting interests.” Cuyler, 446 U.S. at 350.

      As we have noted, the OCCA ruled that Petitioner failed to proffer sufficient

facts or legal argument to support an ineffective assistance of appellate counsel

claim. In deferring to that determination, the district court more fully determined

that appellate counsel’s performance would not entitle Petitioner to habeas relief,

even with the presentation of evidence, because there was no actual conflict of

interest where 1) Demarcus Hammon never testified for the prosecution and

against Petitioner despite his agreeing to do so and 2) the jury never heard

Demarcus Hammon’s statement, reflected in the factual basis for his plea,

inculpating Petitioner. We do not agree that the alleged conflict of interest is

based on Demarcus Hammon’s value as a state’s witness; instead, we interpret the




                                         - 19 -
alleged actual conflict to be based on Demarcus Hammon’s value as a potential

defense witness. 10

      Based on the trial record and Petitioner’s affidavit, which he submitted to

the state court, we interpret the alleged conflict as follows: Until Demarcus

Hamm on’s plea agreement, the joint defense strategy upon which trial counsel was

hired to represent the Hammon brothers w as that the brothers w ould present a

unified front in which Demarcus Hammon would take the full rap for the gun

found in the vehicle, both men would disavow knowledge that there were drugs in

the car (because it was not their car), and a witness (D amien Smith) w ould

corroborate that Demarcus H ammon legitimately acquired the money found on him

during the search. Trial counsel then negotiated a plea bargain with the State for

Demarcus Hammon, in which the State agreed to recommend a five-year deferred

sentence if, but only if, Demarcus Hammon agreed to inculpate Petitioner. Trial



       10
          Respondent claims that Petitioner did not raise, in his pro se petition and
brief in support, the claim that he now raises on appeal. Respondent claims
instead that Petitioner first asserted in his reply brief to this court that trial
counsel’s dual representation prevented counsel from presenting trial testimony
by Demarcus Hammon at Petitioner’s trial. W e disagree. In his Petition,
Petitioner claimed that his trial counsel labored under a conflict of interest
because the same attorney worked out a plea agreement for D emarcus Hammon.
In that petition, Petitioner also explained that “such actions by counsel eliminated
petition [sic] only viable defense.” In his brief in support of that petition,
Petitioner reasserted that his counsel by operating under a conflict of interest
acted against Petitioner’s only viable defense. He then argued specifically that
“[t]he existing conflict affected the defense. Conflict of interest; deal for co-
defendant [Demarcus Hammon], implicating petitioner, deprived co-defendant as
future witness in petitioner [sic] behalf.”

                                        - 20 -
counsel never informed Petitioner that Demarcus Hammon had pleaded guilty,

and, as a result, Petitioner declined a (much less favorable) plea offer of fifteen

years in prison and proceeded to trial. 11 At trial, Petitioner repeatedly asked trial

counsel when Demarcus H ammon was going to testify. According to Petitioner, it

was not until his trial was underway that his trial counsel finally informed him,

during trial, that Demarcus Hammon had already pleaded guilty and thus would be

unable to testify on Petitioner’s behalf as planned because part of the plea bargain

required Demarcus H ammon to inculpate Petitioner and Demarcus H ammon would

receive prison time for lying if he reneged on that inculpation.

      If the facts are as Petitioner alleges, then trial counsel’s performance was

adversely affected by an actual conflict in this case regardless of whether

Demarcus Hammon ever actually inculpated Petitioner at trial. This is so because

trial counsel could not simultaneously negotiate the most favorable deal for

Demarcus Hammon— a five-year deferred sentence— without both disqualifying

Demarcus Hammon from providing exculpatory testimony for Petitioner and,

consequently, sabotaging Petitioner’s most viable defense strategy and the defense

that trial counsel was hired jointly to present for the H ammon brothers. Thus,

once the State offered Demarcus Hammon the conditional plea bargain, Demarcus

Hammon’s interest in obtaining the most favorable plea bargain conflicted with

       11
          W e note that trial counsel’s conflict may have prevented counsel from
pursuing a better plea agreement for Petitioner, or advising Petitioner to accept
the State’s proffered deal, but Petitioner has not raised these issues on appeal.

                                          - 21 -
Glenn Hammon’s interest in presenting his best defense. Yet, trial counsel

continued actively to represent both Hammon brothers— negotiating the

conditional plea for Demarcus Hammon and leading Petitioner to trial without the

best w itness (D emarcus Hammon) to create a reasonable doubt in the State’s case.

See Bowie, 892 F.2d at 1500 (“[D]efense counsel’s performance [is] adversely

affected by an actual conflict of interest if a specific and seemingly valid or

genuine alternative strategy or tactic was available to defense counsel, but it was

inherently in conflict with his duties to others or to his own personal interests.”).

      W here an actual conflict of interest adversely affects counsel’s performance,

as Petitioner’s affidavit suggests here, “[n]o further showing of prejudice is

necessary,” Bowie, 892 F.2d at 1500; see also Cuyler, 446 U.S. at 349-50; instead,

we presume prejudice, see H ernandez v. M ondragon, 824 F.2d 825, 827 (10th Cir.

1987). In fact, here there is more than the general presumption of prejudice; here,

there is evidence in the record of actual prejudice— trial counsel’s candid

statement on the record at trial that he had a conflict of interest based on his duel

representation of the Hammon brothers and the associated problems that such

representation presented once he negotiated a plea bargain for D emarcus Hammon.

      C.     Conclusion

      W e cannot resolve on the record before us whether Demarcus Hammon’s

plea bargain contained an agreement that effectively prevented him from providing




                                         - 22 -
statem ents exculpating Petitioner. 12 Parker, 394 F.3d at 1324 (“No hearing is

necessary if we can resolve the petitioner’s claims on their merits based solely on

the record before us.”). If the facts alleged by Petitioner are true, however, then

Petitioner has shown that his trial counsel actively represented conflicting interests

and thus operated under an actual conflict. Omitting “an issue which was obvious

from the trial record, and one which would have resulted in a reversal on appeal,”

Parker v. Champion, 148 F.3d 1219, 1221 (10th Cir. 1998) (quotations omitted)

(emphasis in original), constitutes ineffective assistance of appellate counsel under

any reasonable application of Supreme Court precedent to Petitioner’s allegations

in this case. See W ood, 450 U .S. at 271; Cuyler, 446 U .S. at 348-50; see also

Upchurch v. Bruce, 333 F.3d 1158, 1164 n.3 (10th Cir. 2003) (“[W]e reject[] the

proposition that omission of a ‘dead bang winner’ is necessary to prevail on a

claim of ineffective assistance of appellate counsel. At the same time, of course,

omission of a ‘dead bang winner’ can be a sufficient basis for such a claim.”)

(citations omitted). W e therefore conclude that the OCCA either reached “a

       12
          The State has requested to supplement the record on appeal with the
probable cause affidavit to support the arrest of Demarcus Hammon in support of
their arguments against habeas relief. Although the affidavit was part of the state
trial court record, it w as not presented to the federal district court. In our view,
the district court should in the first instance have an opportunity to consider this
additional evidence in light of the evidence presented at the hearing on remand to
decide w hether Petitioner is entitled to habeas relief. “Consequently, we
conclude the circumstances in the present case do not lead us to believe the
interests of justice would best be served by exercising our inherent equitable
power to allow [the State] to supplement the record on appeal.” United States v.
Kennedy, 225 F.3d 1187, 1193 (10th Cir. 2000).

                                        - 23 -
decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court” or “that was based

on an unreasonable determination of the facts in light of the evidence presented in

the State court proceedings.” 28 U.S.C. § 2254(d).

      Accordingly, Petitioner is entitled to an evidentiary hearing, and the district

court abused its discretion by denying Petitioner habeas relief without conducting

one. See Anderson, 425 F.3d at 858.

                                   C ON CLU SIO N

      For the foregoing reasons, we conclude that Petitioner has made sufficient

allegations at this stage to merit the opportunity to present evidence in support of

his habeas claim concerning his counsels’ inadequate representation. W e therefore

REVERSE the district court’s order denying Petitioner habeas relief on his claim

of ineffective assistance of trial counsel due to a conflict of interest and

ineffective assistance of appellate counsel for failing to raise that claim on direct

appeal and REM AND the case to the district court for an evidentiary hearing and

further proceedings consistent with this opinion. Petitioner’s request to proceed in

form a pauperis on appeal is G RA NTED.




                                         - 24 -
