Full opinion text
FINAL JUDGMENT SHARION AYCOCK, District Judge. With the assistance of counsel, the Petitioner filed this matter pursuant to 28 U.S.C. § 2254 challenging his state court conviction for possession of methamphetamine precursor chemicals and his thirty-three year sentence. The Magistrate Judge held an evidentiary hearing on September 17, 2008. Following the hearing, the Magistrate Judge recommended that the writ of habeas corpus should issue for McCamey. Specifically, the Magistrate Judge found that McCamey had been denied a fair trial by impartial jurors; that he was denied the right to be represented by conflict-free counsel; and, that any purported waiver of these rights was invalid. The Magistrate Judge has recommended that McCamey receive a new trial within 120 days or be released from custody. On February 25, 2010, the Respondents filed Objections to the Report and Recommendation. The Respondents, however, have not identified any new law or additional arguments which have not already been thoroughly considered by the Magistrate Judge. The basis of the Respondents’ objections are that McCamey’s attorney was not functioning under an “actual conflict of interest” but, rather, there was only a potential conflict. This issue was comprehensively addressed in the Report and Recommendation and the Judge found that the attorney suffered under three separate but related conflicts of interest. See Report and Recommendation, pp. 63-69 (Jan. 22, 2010) (identifying the conflicts and discussing the ramifications). The court agrees with the Magistrate Judge’s findings regarding the existence of actual conflicts of interest. These conflicts rendered McCamey’s waiver of rights — -right to a fair trial and an ineffective assistance of counsel claim invalid. The court can find no reasonable factual or legal support for the Respondents’ “potential conflict” position. Accordingly, the court finds that the Respondents’ arguments are not well-taken and that the Objections should be overruled. The court approves and adopts the Report and Recommendation as its opinion. THEREFORE, it is hereby ORDERED that (1) Respondents’ Objections to the Report and Recommendation of the United States Magistrate Judge are OVERRULED; (2) the Report and Recommendation (docket entry 26) is APPROVED and ADOPTED as the opinion of this court; (3) the instant petition for a writ of habeas corpus is GRANTED conditionally; (4) the conviction of Billy McCamey for possession of precursors is VACATED; (5) the State of Mississippi must commence a new trial of the Petitioner within 120 days of the date of this final judgment; and (6) under Rule 23(c) of the Federal Rules of Appellate Procedure the court must determine whether McCamey’s release, either on bond or personal recognizance is appropriate; the matter is REFERRED to the Magistrate Judge for further determination regarding release. REPORT AND RECOMMENDATION JERRY A. DAVIS, United States Magistrate Judge. Billy McCamey and Charles Hodnett were arrested around in the early morning hours on July 6, 2002, in the parking lot of the Columbus, Mississippi, Wal-Mart and charged with possession of methamphetamine precursors knowing that they were to be used to unlawfully manufacture the drug. Billy McCamey was convicted on that charge in a second trial in the Circuit Court of Lowndes County, Mississippi. He was represented by Donna Smith, a public defender. His first trial had ended in a mistrial when the jury was unable to reach a verdict. (See Exhibit G to petition, Smith affidavit). The second trial was held on December 8th and 9th, 2003. During voir dire the trial judge asked if any of the jurors knew Smith. One of the potential jurors, Martha Hinton, made no response to this question. Hinton had not only made a professional negligence claim against Smith, when Smith missed a statute of limitations in a personal injury action, but she had also filed a bar complaint against Smith in Alabama which resulted in an informal admonition. After the verdict Smith requested a poll of the jury. When Smith heard the name Martha Hinton called, she recognized the name of her former, disgruntled client. Smith claims that prior to that time she was unaware of Hinton’s identity and presence on the venire and later on the jury panel. Smith advised the district attorney of the situation. Both went to the presiding judge to report what had happened. The trial judge became very angry and threw Smith out of his chambers, refusing to listen to her attempted explanation. He accused Smith of deliberately allowing Hinton to sit on the jury. Smith now says her former client’s physical appearance had changed dramatically. Within a matter of minutes of this chambers conference the judge went back into court and sentenced McCamey to thirty-three years in prison. The statutory maximum for possession of precursors under § 41-29-313 Miss.Code Ann. is 30 years. Because McCamey had a prior drug conviction his maximum sentence could be doubled up to 60 years. Two days later on December 11, 2003, the judge called McCamey back to the courtroom and advised him about the “ ‘problem with the juror.’ ” He asked McCamey if he wanted a new attorney. There was an exchange between McCamey and the trial judge during what the parties have referred to as a “waiver hearing.” The trial judge recessed the proceedings with instructions that McCamey was to be held at the courthouse until he had reached a decision. At some point during that day, Smith had two other lawyers confer with McCamey. After this recess, McCamey indicated that he did not want Smith replaced as his attorney, and he wished to waive his right to raise the “juror issue” and a possible claim for ineffective assistance of counsel. That same day, on the judge’s order, his attorney prepared an affidavit waiving McCamey’s rights and had McCamey execute the affidavit. On December 15, 2003, McCamey prepared and signed a motion for a new trial protesting that the waiver was the result of manipulation by his trial counsel. The trial judge denied the motion for a new trial. With new counsel representing him, McCamey appealed his conviction asserting that he had been denied a fair trial before an impartial jury and that he had not made a valid and knowing waiver of his rights. He also asserted that his Sixth Amendment right to be represented by conflict-free counsel had been violated and that he had not waived his right to conflict-free counsel. The Mississippi Court of Appeals affirmed the conviction and sentence. Its opinion effectively conceded that McCamey had been denied a fair trial by an impartial jury by the presence of his trial attorney’s former client on the jury. The Mississippi court, however, found that McCamey had made a valid waiver of his constitutional rights. That court, without any discussion or explanation, found McCamey had also waived his right to conflict-free counsel. The Mississippi Supreme Court denied certiorari and rebuffed McCamey’s application for leave to file for post-conviction relief. In his petition for writ of habeas corpus in this court McCamey asserts two grounds. McCamey argues that the decision of the Mississippi Court of Appeals that he waived his right to a fair trial by a panel of impartial jurors is contrary to clearly established federal law. He also urges this court to find that the Mississippi court’s holding that he waived his right to be represented by conflict free counsel is contrary to clearly established federal law as determined by the Supreme Court of the United States of America. I. LIMITATIONS ON REVIEW Because McCamey has fully complied with all procedural requirements of Mississippi and federal habeas law, this court must consider both claims on the merits. This court’s power to upset the judgments of the state courts in criminal matters is appropriately very limited. The federal courts address only issues affecting substantial federal constitutional rights. The federal courts do not function as super-appellate courts over the states and hold no supervisory authority over those courts. The federal courts may not correct errors of state law unless they also violate the constitutional rights of an accused. Even in matters affecting fundamental constitutional rights, the federal courts have a very limited scope of review. Title 28 U.S.C. § 2254(d) of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) provides: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (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 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. Furthermore, “a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The bare-bones language of AEDPA gives limited guidance to the courts of the practical confines of the scope of review. The United States Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) construed the statute, explained its meaning and applied it to the facts in that case ultimately holding that the petitioner was entitled to relief. To truly understand the parameters of review under AEDPA, it is useful to not only review the Court’s language construing the statute, but to look at its application of AEDPA to the facts in Williams. While Terry Williams was incarcerated on another charge, he wrote an anonymous letter to law enforcement confessing to a murder. Law enforcement had previously attributed the victim’s death to alcohol poisoning, not even recognizing it as a homicide. The letter also referenced an attack on an elderly woman. That attack had left the victim in a vegetative state from which she was not expected to recover. Williams did not sign the letter but was quickly identified as its author. On questioning he quickly confessed. When his victim had refused to loan him a couple of dollars, he had killed him with a mattock and had taken his wallet. He had left his victim still alive and gasping for breath. He was convicted of robbery and capital murder. At the sentencing hearing the state presented evidence of three earlier convictions for armed robbery, burglary and grand larceny. The state also presented his confession to the murder. Other aggravating factors included evidence of two earlier offenses and two additional violent attacks on elderly victims. The jury was also advised that Williams had started a fire outside the home of one of his elderly victims. Additionally, Williams had been convicted of committing arson in jail while awaiting his trial. Two experts employed by the state opined that there was a high probability that Williams would in the future remain a serious threat to society. Williams’ attorney offered testimony from his mother and two neighbors, one of whom was asked to testify only at the hearing. These witnesses testified that Williams had been a nice boy and was not a violent person. There was a taped excerpt from a psychiatrist’s statement that Williams had reported taking bullets out of his gun during an earlier robbery in order to avoid hurting anyone. Williams’ attorney urged the jury to consider that Williams had turned himself in and had cooperated with law enforcement. The primary emphasis of his. attorney’s argument was, however, that it was “difficult to find a reason why the jury should spare Williams’ life.” Id. at 369, 120 S.Ct. 1495. The jury found a probability of future dangerousness and imposed the death penalty. The trial judge concurred that the punishment was “proper and just.” Williams filed for postconviction relief in the state court. The same trial judge held an evidentiary hearing on Williams’ claim that he had received ineffective assistance of counsel. The postconviction record produced documents from a commitment when Williams was 11 years old that described severe abuse and neglect as a young child. Williams was borderline mentally retarded and had received multiple head injuries severe enough to indicate an organic basis for his mental problems. The same two experts who testified at his sentencing hearing to Williams’ future dangerousness were willing to testify that they believed that Williams could be safely committed to a prison environment. The state court trial judge upheld the validity of Williams’ conviction but held that the failure of his trial counsel to discover and put on this mitigating evidence was not professionally reasonable assistance of counsel. He found there was a reasonable probability that the result of the sentencing phase would have been different with competent presentation of the mitigating evidence. The trial judge, therefore, recommended to the Virginia Supreme Court that Williams be granted a new sentencing hearing. The Virginia Supreme Court rejected this recommendation. That court assumed trial counsel’s performance was deficient but disagreed that Williams had been prejudiced. That court, relying on Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), found that the trial judge had erred in relying on “mere outcome determination” in making a determination of prejudice. Williams, 529 U.S. at 371, 120 S.Ct. at 1501. The state court also construed the trial judge’s opinion as holding that the existence of omitted mitigating evidence would per se establish prejudice. Id. The Virginia court emphasized the evidence of future dangerousness, Williams’ criminal history and his multiple recent offenses. That court characterized the mitigating evidence as “mostly relatives” who testified that Williams was nonviolent and could cope well in a structured environment. Comparing the evidence in mitigation against his criminal record, the court determined that this evidence “barely would have altered the profile of this defendant that was presented to the jury.” Id. at 372, 120 S.Ct. 1495. The court held that Williams had failed to establish that he was prejudiced. The federal habeas judge noted that the Virginia Supreme Court had failed to address the question of whether trial counsel’s performance at the sentencing hearing fell below the range of competence demanded of lawyers in criminal cases. This judge in analyzing the record found five categories of mitigating evidence that the defense attorney had failed to introduce. He rejected an argument that the failure to conduct a more thorough investigation had been a strategic decision. Id. at 374, 120 S.Ct. 1495. The federal trial judge found that the failure to investigate could not be justified as a matter of tactics. To the extent the trial counsel made a tactical decision to rely on the fact that Williams had turned himself in and confessed, the decision was not professionally reasonable. The federal district judge agreed with the state trial court judge that Williams had been prejudiced by ineffective assistance of counsel at the sentencing hearing. He held the Virginia Supreme Court had erroneously determined that Lockhart, 506 U.S. 364, 113 S.Ct. 838, had modified the Strickland standard. Applying the AEDPA standard, this judge found that the Virginia Supreme Court’s decision was “contrary to or involved an unreasonable application of clearly established federal law.” He agreed with the state trial judge that the sentence needed to be set aside and a new sentencing hearing conducted. The Fourth Circuit Court of Appeals reversed the federal district court and concurred with the Virginia Supreme Court. It characterized the evidence of Williams’ future dangerousness as “simply overwhelming.” It found Virginia’s interpretation of Strickland and Lockhart were not unreasonable. The Court of Appeals held that the federal habeas relief could not be granted unless the state court “decided the question by interpreting or applying the relevant precedents in a manner that reasonable jurists would all agree is unreasonable.” Williams, 529 U.S. at 374, 120 S.Ct. 1495. In construing the statutory basis for review, the Supreme Court stated that independent meaning must be given to both the “contrary to” and “unreasonable application” clauses of the statute. Section 2254(d)(1) defines two categories of cases in which a state prisoner may obtain federal habeas relief with respect to a claim adjudicated on the merits in state court. Under the statute, a federal court may grant a writ of habeas corpus if the relevant state court decision was either (1) “contrary to ... clearly established federal law, as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.” Id. at 404-405, 120 S.Ct. 1495 (emphasis in the original). Applying a Webster’s dictionary definition, the word contrary “is commonly understood to mean ‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’ ” Id. at 405, 120 S.Ct. 1495. Thus, “[t]he text of § 2254(d)(1) ... suggests that the state court’s decision must be substantially different from the relevant precedent of this Court.” Id. at 405, 120 S.Ct. 1495. “A state court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth” in United States Supreme Court cases. Id. A state-court decision will also be contrary to this Court’s clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent. Accordingly, in either of these two scenarios, a federal court will be unconstrained by § 2254(d)(1) because the state-court decision falls within the provisions of the “contrary to” clause. Id. at 406,120 S.Ct. 1495. In the usual case, where the state court identifies and applies the correct legal principle(s) to the facts of the case, it is not “contrary to” established federal law even if a federal court would apply federal law differently. Id. at 406, 120 S.Ct. 1495. The second circumstance under which federal habeas relief is appropriate is when “a state court decision ... correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08, 120 S.Ct. 1495. “[W]hen a state-court decision unreasonably applies the law of this Court to the facts of the prisoner’s case, a federal court applying § 2254(d)(1) may conclude that the state-court’s decision falls within the provisions of the ‘unreasonable application’ clause.” Id. at 409, 120 S.Ct. 1495. In defining what constitutes an unreasonable application the Court rejected the Fourth Circuit’s “all reasonable jurists” formulation. The court must determine if the application is objectively unreasonable, not whether “at least one of the Nation’s jurists” has applied the law in the same way. Id. at 410, 120 S.Ct. 1495. But the Court further went on to say that an “unreasonable application of federal law is different from an incorrect application.” Id. at 409, 120 S.Ct. 1495. Congress specifically used the word ‘unreasonable,’ and not a term like ‘erroneous’ or ‘incorrect.’ Under § 2254(d)(l)’s ‘unreasonable application’ clause then, a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411, 120 S.Ct. 1495. Notwithstanding this seemingly insurmountable standard of review, the United States Supreme Court found that the Virginia court’s decision was both contrary to established federal law and an unreasonable application of its law. The Virginia Supreme Court erroneously interpreted Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), as imposing an additional requirement of fundamental unfairness over and above the Strickland requirement of showing prejudice. Thus, the state supreme court applied the wrong law to the case. The Court also found the state court’s analysis of prejudice to be unreasonable. While admitting that some of the pretermitted evidence was unfavorable because showing extensive criminal misconduct as a juvenile, the Court found the state court’s analysis was unreasonable “insofar as it failed to evaluate the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding — in reweighing it against the evidence in aggravation.” Id. at 397, 113 S.Ct. 838 (citation omitted). By failing to consider as a factor the one argument made by Williams’ counsel at his sentencing hearing, in tandem with the habeas evidence, the state-court decision was unreasonable. Even adding up Williams’ horrific childhood, his borderline mental retardation, his act of turning himself in for several crimes, his expressed remorse and his cooperation with authorities, the Court conceded, “the finding of future dangerousness” might remain unchanged. Nevertheless, the evidence “might well have influenced the jury’s appraisal of his moral culpability.” Id. at 398, 113 S.Ct. 838 (Emphasis added). The Court noted “the circumstances recited in his several confessions are consistent with the view that in each case his violent behavior was impulsive rather than the product of cold-blooded premeditation.” Id. at 398, 113 S.Ct. 838. The Court further noted “mitigating evidence unrelated to dangerousness may alter the jury’s selection of penalty, even if it does not undermine or rebut the prosecution’s death eligibility case.” The Virginia Supreme Court did not entertain that possibility. “It thus failed to accord appropriate weight to the body of mitigation evidence available trial counsel.” Id. at 398, 113 S.Ct. 838. (Emphasis added). Reading solely the language of the standards to be applied leaves one with the impression that the scope of review is so impossibly narrow as to render the filing of virtually every federal habeas petition an act of futility. No doubt the standards for the grant of habeas relief in federal court for state court convictions are high, very demanding and rarely met, but seeing the Court’s application of the standards tempers the language a little, as does understanding that the Court rejected the “no reasonable jurists” formulation. An application of federal law to the facts of the case may be unreasonable notwithstanding dispute regarding its correctness among jurists. Indeed in Williams the presumably reasonable jurists of Virginia Supreme Court and of the Fourth Circuit Court of Appeals believed they were correctly applying the law to the facts. Three Supreme Court justices also thought that their application of the law to the facts was correct and that habeas relief should have been denied. Reasonable jurists may well debate whether these courts and these judges were “right,” “merely wrong” or “unreasonably wrong.” In looking at how the Court applied the AEDPA standard to the facts of Williams, one is struck by the understanding that an extraordinarily high standard of deference is due to the state courts but that an “unreasonably wrong application” of the federal law is something short of the indisputably and inarguably wrong. The standard that seems impossibly high by its language proves on closer analysis to be a more amorphous and ambiguous in its application. Even for a profession schooled in and accustomed to ambiguity, with multiple undefinable, but never the less well understood standards, the determination of the difference between a “wrong” application of the law and “unreasonably wrong” application of the law veers toward a judicial attempt at nailing Jell-O to a wall. This petitioner’s claims have been examined in light of the standards of review set out by the AEDPA and as construed in Williams. II. STATE COURT RECORD On direct appeal the state court had before it the record of the voir dire examination by the court. This part of the record demonstrated that Martha Hinton withheld material information during voir dire which would have established grounds for challenging her for cause. During the court’s voir dire, the venire panel was specifically asked by the trial judge whether they knew Smith or any member of her immediate family. Several members of the venire panel responded to the question. Some indicated that they or their family members had been represented in the past by Smith. They were questioned by the judge regarding the impact of Smith’s representation on their ability to be fair in the case. R. 14-17. Hinton could not have failed to recognize the relevance of her knowledge of Smith, but in particular the relevance of their unhappy past professional association. The judge at two different points during the voir dire asked the panel whether he had overlooked anyone. Hinton failed to respond. (R. 17). The record on direct appeal to the Mississippi Court of Appeals showed only that it had become known at some point after the trial that Smith had previously represented Hinton and the history of the representation. The record also showed that between the sentencing and the waiver hearing, Smith filed a motion for new trial which made no mention of the problem with Hinton and did not raise McCamey’s right to fair trial before an impartial jury. Also in the state court record was the transcript of the hearing two days after McCamey’s sentencing when the trial judge addressed the problem with Hinton and obtained the purported waivers by McCamey. The colloquy between the judge and McCamey is discussed elsewhere in additional detail, but in essence the trial judge offered to appoint new counsel for McCamey. The trial judge did not advise McCamey of his right to a fair trial before an impartial jury nor that Hinton’s presence on the jury deprived him of his right to a fair trial before an impartial jury. He asked McCamey if he would like to retain a Donna Smith as his attorney. He advised McCamey that he ‘might have’ or ‘could have’ a ground for new trial based on Hinton’s presence on the jury. He suggested at one point that McCamey might have a claim for ineffective assistance of counsel against Smith. When asked by McCamey why he should want a new attorney, the trial judge said that that would be something that a new attorney would have to address with McCamey. He recessed the hearing briefly to allow McCamey to confer with Smith. Smith had two other criminal defense attorneys confer with McCamey. On the reconvening of the hearing McCamey indicated that he wished to retain Donna Smith as his attorney advising the court that he believed she had done a good job for him. McCamey further took the step of defending his attorney by advising the court that she had already advised McCamey of the problem with the juror prior to the hearing. The judge told McCamey that because he wanted to retain Smith as his attorney, he had to waive the juror issue and the possible ineffective assistance of counsel claim. After McCamey had indicated he desired to retain Smith and after he had already indicated that he would waive his rights, the court, then and only then, advised him that he would also be waiving these issues for the purposes of postconviction relief. Under normal circumstances Mississippi law provides that claims for ineffective assistance of counsel are preserved and may be presented for the first time on motion for postconviction relief where trial counsel serves as appellate counsel, Wiley v. State, 517 So.2d 1373, 1378 (Miss.1987). The usual practice in Mississippi, because of the limited record on direct appeal is to deny any claim for ineffective assistance of counsel on direct appeal, without prejudice, even if new counsel is representing the defendant and to defer consideration until a postconviction claim is made. Archer v. State, 986 So.2d 951 (Miss.2008) (“Ordinarily ineffective-assistance-of-counsel claims more appropriately brought during post-conviction proceedings. This is because during direct appeals the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately.” Id. at 955). Claims may be presented on direct appeal only where “such issues are based on facts fully apparent from the record.” M.R.A.P. 22(b). The judge directed Smith to prepare an affidavit for McCamey’s signature waiving his rights. This affidavit refers to waiving the issue of the juror but never refers to McCamey’s right to be tried by a fair and impartial jury. The judge also directed Smith to prepare an amended motion for new trial including the issue of Hinton’s presence on the jury. There is nothing in the state court record about any advice to McCamey about any conflict of interest, nor any proof or indication of any waiver by McCamey of his right to conflict-free counsel. On his motion for postconviction relief McCamey submitted affidavits from Donna Smith, Michael Farrow, himself, and his mother. Smith’s affidavit details that she was called to trial at the last minute and did not obtain a copy of the “venire as seated” list until immediately prior to the commencement of the trial. During voir dire she had no “other identifying data such as race, sex and age as the voir dire proceeded.” She e made notes as the voir dire proceeded. She obviously did not review the juror information cards or the names of the potential jurors. According to the affidavit she was not paying attention when the jury panel was called, impaneled and sworn. She realized only as the jury was being polled after McCamey’s conviction that a Martha Hinton was on the jury. The affidavit details what happened during her representation of Hinton. Smith attributed her failure to recognize Hinton on sight to changes in her former client’s appearance. When she heard the name, Smith pulled and reviewed Hinton’s juror information card and verified that Hinton was indeed her former client. Smith sought out the district attorney and went with him into the trial judge’s chambers. “I advised him of the problem with Ms. Hinton being on the jury. [The judge] was, to say the least, incensed and baldly stated that I had sandbagged the Court. He would not listen to any explanation and told me to leave his chambers, which I did.” According to this affidavit Smith then discussed the problem with Billy McCamey. The affidavit states McCamey was understandably upset as was Smith. “He asked me many questions about what would happen since this had occurred. I explained that he had a right to a new trial based on the fact that he did not receive a fair and impartial jury, as well as a possible ineffective assistance of counsel claim. McCamey then asked what would happen to me if he exercised his right to a new trial. I told McCamey that I could lose my position as a public defender given [the judge’s] then existing wrath at me .... ” R. Briefs & Other Pleadings, Ex. C to Petition for Post-Conviction Relief. (Emphasis added.) She claims that she did tell McCamey that she did not care if she lost her position and that his life was too important to throw away for the next 33 years. McCamey told her that he did not want to get her in any trouble. She reported that she again told him not to base his decision on consequences to her. When McCamey again insisted that he wanted to waive his rights because of the possible consequences to her, she had two other members of the defense bar counsel with him. After. the trial judge reconvened McCamey’s case and McCamey again stated his desire to waive his rights, Smith stated that she prepared the affidavit and McCamey signed it against her ongoing advice not to waive his rights. According to McCamey’s affidavit, Smith was not only worried about the possibility of losing her job but also the possibility of being disbarred if he pursued his rights. McCamey said that if it had been explained to him that Mississippi law would mandate that he get a new trial because of the “juror issue,” he would’ve set aside his feelings for his attorney and not allowed her to influence his decision. He would have in fact accepted the offer of appointment of new counsel made by the trial judge. III. STATE COURT DECISION In his appeal to the Mississippi Court of Appeals McCamey raised four issues pertinent to this case. First, McCamey asserted that his Sixth Amendment right to a fair and impartial jury and his Fourteenth Amendment right to fair trial were violated when the trial judge allowed McCamey’s conviction to stand once he became aware that the jury selected to try McCamey was not impartial. McCamey also asserted that he did not make a valid waiver of his Sixth Amendment right to trial by an impartial jury. McCamey asserted that his Sixth and Fourteenth Amendment rights to effective assistance of counsel were violated when the trial judge allowed him to be represented by his attorney after it became apparent that an actual conflict of interest existed between the attorney and McCamey. McCamey asserted that he did not make a .valid waiver of his Sixth and Fourteenth Amendment rights to be represented by conflict-free counsel. The Mississippi Court of Appeals opted to treat these four issues as one. Under state law the review of a claim of juror bias is limited. “[J]uror impartiality and fairness is a judicial question to be determined on a case-by-case basis, the court’s judgment will not be disturbed unless clearly wrong.” Dennis v. State, 555 So.2d 679, 682 (Miss.1989) (citing Walls v. State, 371 So.2d 411, 413 (Miss.1979)); Odom v. State, 355 So.2d 1381, 1383 (Miss.1978))(quote from McCamey v. State, 923 So.2d 223, 227 (Miss.Ct.App.2005)). The Mississippi court did not disagree with McCamey that Hinton’s presence on the jury denied him an impartial jury. That court noted that a juror is disqualified, “when during voir dire examination, he or she has misrepresented material facts.” McCamey, 923 So.2d at 228. The failure to respond requires a new trial if “the question was (1) relevant to the voir dire examination, (2) unambiguous, (3) the juror had substantial knowledge of the information sought to be elicited, and (4) prejudice in selecting the jury could be reasonably inferred from the juror’s failure to respond.” Id., citing Odom, 355 So.2d at 1383. The court then went on to hold that Hinton should have been disqualified. As the Mississippi the court noted the question about whether a juror knew Smith was relevant and unambiguous. Hinton indisputably had the knowledge of information being sought and “as such Hinton, should not have been allowed to participate as a juror.” Id. The Mississippi Court of Appeals recited the on-the-record conferences between McCamey and the judge and concluded that McCamey had knowingly and intelligently waived his fair trial rights. The Mississippi Court of Appeals had little to say about his third and fourth issues relating to the purported actual conflict of interest between McCamey and his counsel. The court initially mentioned these two issues but then without any further discussion held As the record clearly reflects, McCamey was well aware of the rights which he was waiving. McCamey has failed to demonstrate that the waiver was made with a lack of knowledge or understanding of the consequences. As such, McCamey has knowingly and intelligently waived each of the four sub issues he raises on appeal and therefore McCamey’s contentions are without merit. McCamey, 923 So.2d at 230 (Emphasis added). There is no discussion about whether Smith had a conflict of interest. There is no reference to any on the record waiver specific to this right to be represented by conflict-free counsel. It is this court’s job to determine if these holdings are either contrary to or an unreasonable application of federal constitutional law as enunciated by the United States Supreme Court. IV. GRANT OF EVIDENTIARY HEARING The undersigned granted the petitioner’s motion for an evidentiary hearing over the objection of the respondents. The respondents have argued that McCamey was not entitled to the hearing and that this court lacked the authority to grant a hearing because there is no showing that the limited exceptions of 28 U.S.C. § 2254(e)(2) are applicable to McCamey’s case. The respondents have taken the position in this case and other cases that this court cannot hold evidentiary hearings unless these limited conditions are present. They seemingly miss the qualifier at the beginning of this section, “If the applicant has failed to develop the factual basis of the claim ...” The necessity for meeting the exceptions of this statutory provision only apply when the failure to develop the factual basis for the claim is attributable to some decision or omission of the petitioner. Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 1488, 146 L.Ed.2d 435 (2000); Clark v. Johnson, 202 F.3d 760 (5th Cir.2000). The failure to have the record fully developed cannot be charged to the petitioner as he sought, but was denied an evidentiary hearing, on his motion for postconviction relief. Additionally the duty to develop the record at the “waiver hearing” to show a knowing and intelligent waiver of McCamey’s rights would necessarily have had to fall upon the trial judge and/or the prosecuting attorney. Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Nor can McCamey be charged with any failure to develop a record on the conflict of interest. For reasons hereafter discussed the undersigned finds that the trial judge was at least partially responsible for developing this matter for the record. McCamey for his part could not be expected to appreciate or make the record on his attorney’s conflict of interest or be charged with her omission to make a record of the conflict. Once it is determined that the provisions of § 28 U.S.C. § 2254(e) do not prohibit the granting of an evidentiary hearing, the request is addressed to the discretion of the court. McCamey submitted affidavits which supported his claims. (Ex. G, H, I to the petition). Given the incompleteness of the state-court record, the apparent denial of a fair and impartial jury, the possibility of conflicts of interest by McCamey’s counsel and the fact that his waiver brought McCamey absolutely no concessions, benefits or perceived benefits, the undersigned exercised his discretion to grant the hearing. Also supporting the decision to grant the evidentiary hearing is the fact that observing McCamey gives an understanding of his intelligence, education and other factors that bear upon whether he knowingly and intelligently waived his rights. This information was known to and observed by the trial court but would not be captured on the record. A. THE EVIDENTIARY HEARING At the evidentiary hearing the first witness called was Donna Smith. Smith as of the date of the hearing remained a public defender in Columbus, Mississippi. She testified the trial that is the subject of this habeas petition was in fact McCamey’s second trial on these charges. The first trial resulted in a mistrial when the jury was unable to reach a verdict. She reiterated what was stated in her affidavit-that she became aware of Hinton’s presence on the jury only when the jury was polled after the verdict. After confirming that Hinton was indeed her client, according to Smith’s testimony: I immediately found the DA, explained to him what had happened and we went back into chambers and sat down with [the judge]. I tried to explain to [the judge] what had happened. He was ... became quite angry, refused to listen to any further explanation from me. Told me to get the hell out of his chambers. (Emphasis added). She testified that he was quite angry and accused her of sandbagging the court. She said that this particular trial judge can be quite intimidating at times. When asked if the trial judge was livid with her, Smith responded: “He was indeed.” Asked her feelings after being thrown out of the judge’s chambers, Smith replied: To use your words, I was intimidated. I was upset. I knew Mr. MeCamey’s life was on the line. His liberty was on the line. Uhm ... we went almost immediately into sentencing and quite frankly, Judge, I cried all the way through sentencing. I was so upset and had been so intimidated by [the judge]. She estimated the time between being thrown out the judge’s chambers and the sentencing at 15 to 20 minutes. She testified that she talked to McCamey about what had happened only after the judge had, in her words, “banished me from his chambers.” McCamey asked her what would happen to her if he exercised his rights. She told him given the trial judge’s “wrath with her” that he could fire her as a public defender. She claims that she told McCamey that she didn’t care. She testified that she had filed the original motion for new trial based only on insufficient evidence on November 11, 2003. She later filed an amended motion for new trial including the ‘juror issue’ but never argued it before the judge. The trial judge later instructed her to submit an order denying the motion. When asked if she had ever made an argument to the judge about the lack of an impartial jury, Smith said that prior to the waiver hearing, “I was not allowed to speak with [the judge] about this case. Whether or not the DA was present. I was still under banishment, if you would.” Smith also testified to what happened during the waiver hearing. She mentioned that McCamey asked the judge why he would want new counsel. The judge’s response was that a new attorney would have to explain that to him. She was then asked “so [the judge] would or would not tell him why he needed to have a new attorney?” Smith responded, “In my opinion, would not. And I think the transcript supports that.” She said that when asked if he wanted to stick with her, McCamey indicated that he did and voiced his opinion that Smith had done a fine job for him. Smith testified to the heavy criminal trial docket in Lowndes County. She estimated that at the time of McCamey’s trial there would be approximately 300 new indictments each of the four jury terms per year. She estimated that the judges would each have 20 to 30 cases on the docket every day during each of the terms. She said that the trial judge would certainly not have been happy to have been faced with the prospect of a third trial for McCamey on the same charge. When asked about the demeanor and atmosphere in the court room, Smith testified, Basically I felt it was a CYA hearing, since during that hearing Mr. McCamey orally waived his rights. [The trial judge] from the timbre of his voice what happened was [the trial judge] told me to prepare that order[affidavit] and without saying so in so many words told Mr. McCamey to sign it. He was ... I don’t want to say he was strident, but quite strong in his suggestion that that would happen. Smith claimed to have told McCamey that he had a right to a new trial. When asked if the trial judge had ever told McCamey that he had a right to a new trial Smith responded, “No, he hem-hawed all around it.” When asked whether she believed that if Mr. McCamey had intelligently waived his right to a fair jury Smith responded, I think Billy waived his right out of a misplaced concern for %vhat might occur to me. I kept telling him do not make your decision based upon those concerns. I do not care what happens to me. You’re looking at 38 years. You need to make your decision based on what happened in that courtroom. (Emphasis added). Smith was also asked: Assuming that all we are looking for are his best interests ... what Mr. McCamey’s best interest is, was there any rational, any reason not to file a motion for new trial based on lack of an impartial jury and to argue such a motion to the court, assuming you are just acting in Mr. McCamey’s best interest? Smith replied, “No.” On cross examination by the state when asked what McCamey’s initial reaction had been when she tried to explain what happened with the juror, Smith testified: Actually I don’t think he understood exactly what I was telling him. And I went back ... or should I say stopped and tried to explain it more thoroughly to him. I also at that point realized he’s in jeopardy of giving up some rights he needs to assert and went and asked Mr. Farrow, Michael Farrow and Ms. Carrie Jourdan, who are members of the defense bar to talk to him to basically make sure he understood what was going on from someone other than me. Smith was asked if she let her personal feelings about her job influence her advice to her client. Smith replied that she did not let those feelings influence her advice to her client. During her redirect examination Smith admitted that McCamey appeared to be acting irrationally at that point because he getting nothing in exchange for his waiver. She admitted she could have protected his rights by announcing to the court that he would not waive his rights to an impartial jury. When asked why she didn’t do that Smith initially replied, “Actually the reason I didn’t do it was because Mr. McCamey was under oath in the courtroom when he was making those statements himself.” When pressed about whether she could have simply announced to the court that he would not waive his rights given the lack of a rational basis for his decision to do so, Smith admitted that she could have. She was asked “And you would have done that, would have done that if you had not been so intimidated by [the trial judge] wouldn’t you?” Smith replied, “And had I not been so upset with what was going on, yes.” Smith was again asked if McCamey made an irrational decision. She replied, “I would have to agree with that, yeah.” Billy McCamey also testified at the evidentiary hearing. His recollection is that the first indication he had of a problem with the juror was a few days after his sentencing. He said he didn’t know why he was being called back to the courthouse. He testified that when he got back to the courthouse Smith told him about the problem with the juror. The undersigned accepts and credits McCamey’s recollection of when he was first advised of the problem with Hinton. McCamey testified that he didn’t really understand what Smith was saying about the consequences of the juror being on the jury. When asked about discussions with Smith about whether or not he should ask for alternate counsel, McCamey testified that Smith just asked him if he wanted to get another attorney and he told her no, that he thought she had done a good job for him. He didn’t remember anything else being discussed about whether he should get another attorney. This conversation took place immediately prior to the waiver hearing on the day of the waiver hearing. McCamey was asked if Smith had said anything to him about what might happen to her if he got another attorney and asked for a new trial. McCamey stated, “She said something about being as [the trial judge] was so mad that he could probably fire her.” He also recalled her saying something about being disbarred. He said Smith was very upset. The judge never explained that if he got a new attorney he could get a new trial. McCamey testified that if it had been explained to him that way he would not have waived his rights. McCamey admitted he was very concerned about Smith’s welfare and worried that she would lose her job. He believed that Smith had done a good job for him and he did not want to cause her any harm. McCamey testified at the hearing that he now understood that he had a right to new trial, had he not waived it. At the time of the waiver hearing he did not understand that. McCamey did not understand that the meeting was not routine. He testified, I thought it had something to do maybe if my attorney didn’t represent me good or whatever. That’s what I thought the whole thing was about. I thought [the trial judge] later on was going to give me a new trial on account of, he done said something about the juror. I was thinking that he was going to do that on his own, was what I thought. When asked about the waiver itself, McCamey said, “The judge had asked me, and when he told me, he said that ... did I want a new attorney, and I said no. Well I want an affidavit drew up and I want you to sign it. And I told him okay.” He was questioned about his understanding of the affidavit. He thought he was waiving his rights to claim ineffective assistance of counsel. “And as far as you could tell from what you observed about her performance, you thought she was a good lawyer?” McCamey responded, “Yes.” He recalled speaking with Mr. Farrow. He remembers Farrow asking him if he wanted a new attorney. McCamey told Farrow he believed Smith had done a good job for him. He also remembered the consultation with Jourdan. Jourdan, according to McCamey, did not appear to be certain about what was going on. She was telling him something about a juror who was on the jury who was not supposed to be there. She asked him if he wanted a new attorney. He told her he didn’t want new attorney; that he wanted Ms. Smith. McCamey testified that he didn’t want to cause Smith any harm. He believed that she had done a good job for him in the trial of his case. He waived his rights and signed the affidavit because he thought the Donna Smith was the best attorney. On questioning by the undersigned, McCamey testified that he had an 11th grade education having gone through that grade several times. He claimed to be able to read and write. He had undergone treatment for mental disorders some 15 or more years prior to the hearing. He was unable to provide any information regarding diagnosis but was seen by psychiatrist and was institutionalized for a time as result of his mental troubles. He has also undergone treatment for drug addiction. It was apparent to the undersigned that McCamey is of below average intelligence with very limited education. McCamey’s demeanor in the court room and dealing both with the undersigned and the attorneys showed a very respectful and deferential approach to authority figures that at least borders upon being obsequious. It was also apparent that while McCamey seeks relief he still has faith and confidence in his former trial counsel and a lingering loyalty to her. According to McCamey, the trial judge never advised him that he had a right to a new trial nor did he explain to him why he should get another attorney. The judge never mentioned anything about a conflict of interest. The respondents called Michael Farrow. Like Smith he is a practicing attorney Columbus, Mississippi, and one of the public defenders in Lowndes County. He spoke with McCamey at Smith’s request. He described it as a four or five minute conversation in the sheriffs office. Smith advised him of the problem with the juror. She asked Farrow to speak with McCamey about his appellate rights. He has no specific recollection of his conversation with McCamey but testified based upon what he believes he would have said. Farrow testified that his advice to McCamey would have been not to waive anything unless you’re getting something for it. Otherwise a waiver of rights makes no sense. He could not say whether he had discussed anything about the likelihood or unlikelihood of being granted a new trial with McCamey. He testified he definitely would not have told McCamey that being granted a new trial was a certainty. He did not recall talking to McCamey about the consequences of waiver. He had no specific recollection of talking to McCamey about the ineffective assistance of counsel claim but assumed that he did so. Farrow said McCamey seem to be very concerned about keeping Ms. Smith as his attorney. He said based on his own experience in dealing with defendants that it is difficult to determine their mental status. He testified that he sometimes wonders if they are even listening to what their attorneys tell them. Most defendants have a very limited understanding of the judicial system and low IQs. He testified that he would place McCamey in that category. Farrow did not believe that McCamey understood the ramifications of the situation. Farrow himself did not understand that McCamey would be losing the ‘juror issue’ for the purposes of appeal by doing the waiver at that time. Accordingly he did not advise McCamey of the impact of waivers on appeal or post-conviction. V. DEFINITION OF THE ISSUES AND STRUCTURE OF ANALYSIS Initially, the undersigned finds that in undertaking an analysis of the record, it is advisable to state up front what issues are before the court and in so doing to refine those issues from those stated by the petitioner. In his petition McCamey states the issues as follows: GROUND ONE. The Mississippi Court of Appeals decision holding that McCamey waived his right to a fair trial by a panel of impartial jurors is contrary to clearly established federal law as determined by the Supreme Court of the United States. and GROUND TWO. The Mississippi Court of Appeals decision holding that McCamey waived his right to be represented by conflict-free counsel is contrary to clearly established federal law as determined by the Supreme Court of the United States. Implicit in each of these two grounds are additional questions which must be answered in order to determine whether McCamey is entitled to habeas relief. The undersigned finds that three of the four issues before the Mississippi Court of Appeals remain to be considered by this court. With regard to Ground One an implicit question is whether McCamey was deprived of a fair trial by a panel of impartial jurors. That question has been answered in the affirmative by the Mississippi’s Court of Appeals. To resolve Ground Two the court must determine several issues. First, the court must determine whether there was a conflict of interest between Smith and McCamey and its impact on his representation. The respondents have conceded that McCamey has not waived his right to conflict-free counsel, but the undersigned will briefly address this issue since the Mississippi Court of Appeals held that McCamey had waived this ground. The petitioner also contends that the Mississippi Court of Appeals failed to issue a decision on the merits on Ground Two, the conflict of interest claim. McCamey, therefore, claims that the matter must be decided by this Court de novo. The respondents disagree, asserting that the matter has been resolved on the merits by the Mississippi Court of Appeals, and is, therefore, subject to the AEDPA’s limited deferential standard of review. The parties also disagree on the legal standard to be applied in evaluating the impact of any conflict of interest. The petitioner argues for the application of the more lenient presumed prejudice standard articulated in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed2d 333 (1980). The respondents contend that pursuant to Beets v. Scott, 65 F.3d 1258 (5th Cir.1995) (en banc), that the petitioner’s claim must be evaluated under the Strickland standard. The respondents assert that McCamey must show both deficient performance by his attorney and resulting prejudice, a burden which they contend McCamey cannot meet. Finally, the issues of fair trial rights and conflicts of interest are not neatly separable. Conflicts of interests by counsel and ineffective assistance of counsel during the waiver hearing are potentially fatal to any waiver of McCamey’s right to be tried by an impartial jury. Additionally the same part of the record, the colloquys between McCamey and the judge, are the crucial portion which must be analyzed in evaluating both issues. Therefore, the analysis of the rest of the report and recommendation is structured as follows: 1) a discussion of the law pertinent to both grounds; 2) a general discussion of law pertinent to Ground One; 3) a general discussion of the law pertinent to Ground Two, and resolution of conflicts regarding applicable law; 4) detailed analysis of the waiver hearing exchanges between McCamey and the judge with regard to both Grounds One and Grounds Two; followed by additional analysis as to 5) Ground One separately and 6) Ground Two separately. The report and recommendation closes with some final comments and the undersigned’s conclusions and recommendations. A. LAW COMMON TO BOTH GROUNDS WAIVER OF CONSTITUTIONAL RIGHTS Both of McCamey’s stated grounds revolve around whether there has been a valid waiver of his constitutional rights and involve the application of the same case law. In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the United States Supreme Court stated: “It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ ” Id. The court further instructed: “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been intelligent waiver ... must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Id. In McCamey’s case the rights involved are two of the most fundamental rights necessary to assure due process and fundamental fairness in trials — the right to be tried by an impartial decision-maker and the right to have effective assistance of counsel, more specifically in McCamey’s case the right to be represented by conflict-free counsel. “Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). The requirement that waivers must be knowing, intelligent acts applies not only to the right to counsel but other trial rights. Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. 1019. The United States Supreme Court made clear in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) why the presumption against waiver of vital constitutional rights was critical: A strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to ensure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial. Any trial conducted in derogation of that model leaves open the possibility that the trial reached an unfair result precisely because all the protections specified in the Constitution were not provided. Id. at 241, 93 S.Ct. 2041 (Emphasis added). The United States Supreme Court has further placed the responsibility for assuring that any waiver is knowingly and intelligently made squarely upon the shoulders of the trial judge. To discharge this duty (of assuring the intelligent nature of the waiver) properly in-light of the strong presumption against waiver of the constitutional right ..., a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right ... and desires