Georgia Supreme Court affirms denial of habeas corpus petition

In th e Supr eme C ourt o f Georg ia Decided: Ma rch 3, 2026 S2 6A01 85. GIBSON v. HEAD, WARDEN. L A G RUA, Justice. Exzavio us Gibs on a ppeals the d enial of his seco nd petitio n for writ of h abeas corpu s, which stem med fro m his 1990 con victi ons f or murder an d armed ro bbery. On appeal, Gibson contend s t hat, beca use his trial c ounsel labored unde r an o bviou s an d imper missib le conf lict by represen ti ng G ibson whi le als o work ing as a Spe cial A ssi sta nt Att orney Gen eral, G ibson w as d enied th e rig ht to effe ctive assi stan ce of counsel, an d hi s conv iction s shou ld be vacated. For th e reason s that foll ow, we affirm the habeas c ourt ’s denia l of Gibso n’s petit ion be cause the r ecord sup por ts th e hab eas court ’s conclus ion tha t Gibs on fa iled to sho w that an ac tual c onflic t of inte res t exist ed that signif icant ly an d adve rsely aff ected his trial NOTICE: T his opini on is subje ct to mo dificat ion res ultin g from motion s for re consi derat ion unde r Supre me C ourt Rule 27, the Cour t’s reco nsiderat ion, and editorial revisions by th e Reporter of Decisions. The versi on of the opinion publis hed in the Advance Sheets fo r the Geo rgia Repo rts, desi gnated as the “Final Copy, ” will r eplace an y prior version on the Court’s websi te and docket. A bound volu me of the Georgi a Reports will con tain the final a nd officia l text of t he opinio n.

2 couns el ’s p erfo rmance. 1 See Cuyle r v. Sull ivan, 446 US 33 5, 348 – 50 (198 0). 1. T he u nde rlyi ng p roceed ings. (a) Trial and dir ect a ppeal. In 1990, a Dodg e County jury found Gibson gu ilty of murder and arm ed rob bery a risi ng ou t of th e Februa ry 199 0 stabbi ng death of Doug Coley, who ope rated a grocery sto re in D odge C ounty. See Gibs on v. S tate, 261 Ga. 313, 31 3 (199 1). Gibs on, wh o was 1 7 yea rs old at th e ti me of th e cri mes, entered the groc ery store and “ki ll ed the owner wi th a k nife by sta bbing and sla shing him thir ty - nine times.” Gibson v. Turp in, 270 Ga. 855, 855 (1 999). Gibs on “attac ked the vict im with suc h force tha t the b lade of t he knife brok e in th e v ictim ’s neck vert ebrae, ” but “ he cont inued sta bbing with the handle a nd blade r emna nt.” Id. Foll owin g Gibs on’s ar rest, “G ibs on con fesse d tha t he r obbed an d murder ed th e v ictim be cause he n eeded mon ey for dru gs” an d becaus e the v icti m had “chas tised ” hi m earli er in t he day for “usi ng ————————————————————— 1 This case was docketed in this Court to t he term beginning i n December 202 5 and wa s orally argued o n January 20, 202 6.

3 profanity.” I d. at 85 5 – 56. “G ibson told the pol ice th at he had n o regrets about wh at he h ad done.” I d. at 856. Following Gibson ’s convi ction s, th e trial cou rt sent enced him to death for murder a nd to life in pr ison for arm ed robbery. See Gibson, 261 Ga. at 31 3. Gibson wa s rep resen ted at tri al by Dennis Mullis, a public d efend er, who also fil ed a dire ct app eal on Gi bson’s behalf. 2 In 1 991, this Co urt affirmed Gibs on’s con victi ons an d senten ces. Se e id. ————————————————————— 2 In his direct appeal, Gibson ar gued that his convictions should be reversed based on the follo wing contentio ns: (1) the trial court erred by denyi ng his motion for chan ge of venue beca use he could not get a fair trial i n Dodge County; (2) the trial court abused its di s cretion by denyin g Gibson’s motion to compel the State to submit its re quests to charge at le ast 24 hours before trial; (3) the trial court erred by refus ing to close the pret rial proceedings to the media; (4) the tria l court erre d by denying Gibs on’s motion to suppress b loody money, bloody cloth es, and the victim’s wallet seized fr om Gibson’s bedro om because there was no evidence t hat the arresti ng officer was authorized to enter the bedroom; (5) the attorn ey general’s respo nse to Gibson’s attempt to subpoena informati on from witn esses employed by the s tate crime labor atory denied Gibson the effective assistance of counsel becau se Gibson wa s forced to withdraw those subpoenas afte r the attorney general used “bullyboy” tactics by seeking to quash the subpoe nas, to assess costs, and to h old defense counsel in contempt of co urt for fi ling the sub poenas; (6) the trial court abused it s discretion in den ying Gib son’s motion f or mistrial after the arres ting officer offered testimony based on hears ay; (7) the trial court erre d by admitting pre - autopsy photograp hs of the victi m’s body; (8) the trial court a bused its discretion in denyi ng Gibs on’s motion fo r mistrial after the State asked Gib son about how long the effects of crack cocai ne lasted during the sentencing phase

4 (b) Habeas p rocee dings. A fter th is Cou rt af firmed Gi bson’s convic tions and s entences on app eal, Gibson filed his first pet ition for habe as c orpus in th e Superi or C ourt o f Butts Cou nty (the “hab eas court”) on De cember 20, 1995, “ asserting ineffect ive assistan ce of couns el, p rosecu torial mi scon duct, and o ther cl aim s.” Gibson, 27 0 Ga. at 855. Af ter an e vident iary hear ing in which Gi bso n appeare d pro se, th e ha bea s cour t deni ed Gibs on’s reques t fo r reli ef on Ma rch 11, 1 997, and Gibson f iled a n app licat ion for a certifi cate of probabl e cause to ap peal to t his Court, which the Cou rt denied. Se e i d. In 200 0, Gi bson fil ed a se cond peti tion for habeas co rpus, a lleging, among other thing s, that Mullis — his tria l and appel late couns el — had labo red und er a conflic t of int erest be cause, at the time Mullis repre sented Gibs on as a publi c defen der, M ullis was als o work ing as a Spe cial Assi stan t At torney Gen eral repre sent ing the ————————————————————— of the trial; (9) the evidence wa s insufficient to supp ort the verdicts in this case; and (10) the tr ial co urt’s jury instructi ons shift ed the burd en onto Gi bson to justify a life sentence. See Gibson, 261 Ga. at 314 – 17. Seeing no merit to any of these contentions, this Court affir med. See id.

5 Depa rtment of Transpo rtation in hig hway condemnati on matte rs — which G ibson discov er ed af ter the proce edings o n his fi rst ha beas pet ition co ncluded. T he habe as cou rt di smissed Gibson ’s secon d habeas petitio n as s uccess ive under OCGA § 9 - 14 - 51, without conduct ing an ev iden tiary h eari ng, and Gibson time ly filed an appli cation for a certifi cate of pr oba ble cau se to appe al to this Co urt. This Cou rt denied Gibso n’s ap plicatio n as t o all clai ms ex cep t his conf lict - of - intere st c laim. As to that cla im, we re mande d the case for the hab eas c ourt to condu ct an evi denti ary h eari ng to d eterm ine i f Gibso n’s conf lict - of - int erest c laim, which was alleg edly bas ed on newly discov ered informati on, w as pr ocedu rally ba rred an d, i f not, if it ha d mer it. See Gi bson v. Head, 282 Ga. 156, 15 6 (2007) (rec ounting p rocedura l histor y). Following a n evid entia ry hearing in Sept ember 20 03, the habeas cou rt c on clud ed th at th e con fli ct - of - intere st claim w as procedu rally barr ed, and it made no ruling re garding the underlying merits of th e cl ai m. See Gibson, 282 Ga. at 156. T h ereaf ter, “[b] ase d

6 on in forma tion i n th e trial r ecor d, th is C ourt, on Oct ober 7, 2005, again remanded Gibson ’ s cas e to th e habeas cour t [3 ] to allow Gibso n to chal len ge hi s dea th sen ten ce b ased on a recent decision by th e Supreme C ourt of th e Uni ted St ates barrin g th e exec uti on of pe rsons who we re unde r 18 years o ld at the tim e of their cr imes. See Roper v. Sim mons, 543 US 551 (2005).” I d. On rem and, t he hab eas court vacated Gi bson ’s dea th sen ten ce based on his age at the t ime of the murder, but deni ed his oth er r equ ests for rel ief, again c onclud ing that Gib son’s co nflict - of - interes t cl aim w as proc edur ally barred. See id. Gibson time ly filed a n app lication for a certi fic ate of pro bable cause to ap peal to this Court, whic h was g ranted. See id. On appeal, t h e Court conclud ed that th e habea s c ourt erred in dete rmining tha t Gibson’ s conflic t - of - intere st claim was procedu rally barr ed be cause t he habeas court had “fa il ed to con sider that Gi bson was enti tled t o presu me that h is tri al cou nsel was n ot labor ing under an undisclos ed co nflict of int erest, ” given t hat “ tri al ————————————————————— 3 It is not clear from the record how the case was proce durally back in this Court when we issued this rem and.

7 couns el had an affi rmat ive du ty ari sin g from s everal sou rces t o disclo se his pot ential co nflict. ” Gi bson, 282 Ga. a t 15 7–58. The Cour t also noted that Gibson’ s co nflict - of - inter est c laim “ would not be barred by re s ju dicat a … if i t wer e base d on f acts that were n o t reason ably avail able at th e ti me of the h abe as pr oceedi ng.” I d. at 159. I n 2007, t he Co urt reman ded the case for the habe as cou rt to determi ne “ the prec ise timing o f Gibso n’s discov ery of the p revious ly undisclo sed employme nt of his trial c ounsel a s Spec ial Ass istant Attorn ey Gen eral.” Id. On Nov ember 28, 2 023, the h abea s cou rt i ssue d an order denying G ibson’ s se cond habea s petit ion. 4 In th e order, t he habe as court d ete rmin ed th at Gibs on’s con flict - of - intere st claim was not procedu rally barr ed becaus e “Gibs on was entitl ed to presu me t hat his co unsel wa s not labor ing under a conflic t of interest,” an d Gibs on ————————————————————— 4 Following this Cour t’s remand to the habeas cou rt in 2007, s ee Gibson, 282 Ga. at 159, Gibson’s habeas case languished u ntil 2023 — for reason s that are not apparent in the record — whe n an attorney ent ered an appe arance on Gibson’s behalf a nd subm itted a pro posed order granti ng Gibson’s second habeas petition.

8 “ co uld not reasonab ly have ra ised this cla im” in his fir st habea s pet ition. A s to th e meri ts o f Gi bso n’s conf lict - of - inte rest cla im, the habeas court con sidere d the evi dence p resented a t th e 2003 h earin g on Gi bson’s sec ond h abeas peti tion, 5 as wel l as the rema inder of the record, an d den ied Gibs on’s claim on t he merits, c oncluding t hat Gibson fail ed “t o sh ow th at an actu al c onfli ct of in terest ex ist ed which sig nifica ntly a nd adve rsely af fect ed his tr ial co unsel’s repres enta tion of Gi bson, ” c iting Cu yler, 446 US at 3 48 – 50, a nd Ha ll v. Ja ckson, 310 G a. 714, 720 (202 1). In deny ing Gibso n’s habeas p etiti on, t h e habe as c ourt no ted that, pri or to t rial, Mullis served subpo enas on se veral GBI ana lysts, see king the pr oductio n of info rmatio n the anal ysts utilize d in maki ng th eir fin ding s in th is case. A fter th e subpo en as were s erved, t he Attorney Ge neral, re present ing the GBI, moved to quas h the subpoen as on the bas is t ha t they were overly bro ad and sought ————————————————————— 5 Mullis testified at the Sept ember 9, 2 003 hearing on Gib son’s second habeas petition. Gibson also pr esented testimony from Mu llis’s June 2 7, 2003 deposition, as well a s other evidence, at that hearing.

9 inform ation that was n ot di scov erabl e. The motion t o quas h also reques ted fe es a n d sanctio n s against M ullis, including a req uest to hold Mullis in contempt f or t he a llege dly frivolou s natu re of the subpoen as. When th e moti on to qu ash w as argu ed at t rial, Mul lis withdr ew the subpoen as, explaining t hat he did no t wa nt to be requir ed to p ay sanction s or be held in cont empt, even thoug h t he trial court ad vised that was un lik ely to o ccu r. The h abeas c our t observ ed that G ibson ’s co nflict - of - interest claim cente red o n Mullis’s withdr awal of t he se subpo enas a nd an asserti on that, whe n the Atto rney Gen eral’s Offic e filed a motion to quash on b ehalf of th e GBI, Mullis withdr ew the s ubpoena s because he d id not w ant to jeopardi ze h is pos ition as a Speci al A ssist ant Attorn ey Gen eral, not becau se of any con cer n about bei n g sanc tioned or held i n cont empt. Gi bson al so cl aimed that M ullis’s dec ision t o withd raw t he subp oenas dem onstr ate d his conf licting loyalt ies and advers ely affec ted his r epres enta tion of G ibson. The

10 habeas court d is agreed, conclud ing th at th e eviden ce in the record did no t support Gi bson’s content ions. To that en d, th e habeas court noted that Mullis testi fied a t a 1996 hea rin g on G ibson ’s firs t habea s petiti on that his reason for with drawi ng th e su bpoen as was stri ctly to av oid b eing sancti oned or held in c ontempt, not beca use of any conf lict in his loy altie s to Gibson. Mullis also raised the i ss ue of th e m otion to qu ash i n Gibson ’s di rect ap pea l. See Gibson, 261 Ga. at 31 5 –16. The habeas court also observ ed that Gi bson produc ed no evidence during the habeas pro ceedi ngs to enabl e the c ourt t o deter mine whether the subpoen as were v alid or whether the subpoen aed documen ts wo uld have cont ained valuable and relevan t information tha t could ha ve bee n used in defending Gibson at trial. A dditiona lly, Gib son f ailed to presen t any ev iden ce to dem ons trate th at Mul lis withd rew t he subpoen as based on a con cern th at his positi on or i ncom e as a Speci al As sistan t A ttorney Gene ral woul d be j eopardi zed, and as such, this conten tion was “merel y sp ecul ative,” particula rly sinc e

11 Mullis te stifie d otherw ise. The hab eas c ourt furth er conclu ded t hat, altho ugh Mullis was wor king as a Sp ecial Assist ant At torney General hand lin g Depar tmen t of T ranspo rtati on cas es when he w as also represen tin g Gi bson, th at was at most a “ pot enti al ” c onflic t, a nd Gibson was still requir ed to show “an adve rse effe ct” on Mul lis ’s repres enta tion by virtue of this confl ict of i nt erest, a s howing Gibs on failed to mak e. See Cu yler, 446 US at 348 – 5 0. Fo r th ese re asons, the habeas court deni ed Gibson ’s requ est for h abeas reli ef. 2. On app eal, G ibson conten ds that, becaus e Mul lis labore d under an ac tual co nflict of interes t by r eprese nting Gibson while simu ltan eousl y servi ng as a Spec ial A ssis tant At torney Gene ral, Gibson w as d enied th e ef fecti ve as sist ance of c ouns el, and hi s convi ctions sh ould be vac ated. Specif ical ly, Gibs on claims that Mullis’s emplo yment a s a S pecial A ssistant A ttorney G eneral creat ed a substan tial risk that Mullis’s interes t in ma intaining favor with the Attor ney Gener al would a ffect his sim ultane ous repres enta tion of Gibson, a nd when Mullis’ s re latio nship with t he

12 Attorn ey Gen eral ’s o ffice je opardi zed h is d uty of l oyalty to G ibs on, Mullis pr iorit ized t he for mer by with drawin g th e subpo enas he h ad served upon analyst s from the GB I. “A crimina l defe ndant in Georgia is co nstit utiona lly entit led to the ef fectiv e assista nce of co unsel dur ing his tr ial, mo tion fo r new trial p roceeding, an d dir ect appea l. O ne com pon ent o f th e rig ht t o the ef fectiv e as sis tance o f cou nsel i s the righ t to repr esent ation that is fr ee of act ual conflic ts of int erest. ” H uitro n v. Toby, ___ G a. _ __ (2026), S25A 0124, sli p op. at 15 – 16 (Ga. F eb. 3, 2026) (citing Hall, 310 Ga. at 72 0 (quotat ion m arks om itted)). In evaluating a criminal defen dant’ s clai m that “a confli ct o f in terest w orked a deni al of th e effec tive ass istan ce of counsel,” Tol ber t v. State, 298 Ga. 147, 1 49 – 50 (2015), this Cour t has co nsistently a pplied the fram ework f ro m Cuyler a nd r equi re d th e defen dan t to show that “ an act ual conflic t of inte rest ad vers ely affe cted h is l awy er’s pe rform ance.” 6 C uyler, 446 ————————————————————— 6 See e.g., Huitron, , S25A0124, sl ip op. at 15– 16; Dills v. Weaver, __ G a. __ (2026), S25A 1367, slip op. at 17 (G a. Jan. 5, 2026); Adams v. State, 317 Ga. 342, 35 1 (2023); Hall, 310 Ga. at 721; Moore v. State, 3 11 G a. 50 6, 511 (2021); Tolbert, 298 G a. at 149 – 50; State v. A bernathy, 289 Ga. 603, 604 (2 011).

13 US at 348 (holding that, “[i ]n orde r to d emonst rate a v iolati on of h is Sixth Ame ndme nt right s, a defe ndant mus t estab lish tha t an actua l confli ct of i nter est adv ersel y aff ected his l awyer’s p erformanc e”). See also A da ms v. State, 317 G a. 342, 35 1 (20 23) (hold ing that “a n actual confli ct of in teres t means precisel y a con fli ct th at af fected cou nsel ’s perfo rmance – as oppo sed to a me re theo retical divisi on in loy alties ” (clean ed up)). When w e revi ew a habe as court’ s de cisi on on a peti tion er’s conf lict - of - inter est clai m, “w e accep t the cour t’s f actual fi ndi ngs unl ess th ey are clearly er roneou s, but we apply the law to thos e fac ts de novo. ” Dills v. Weaver, __ _ Ga. ___ (202 6), S25A 1367, sl ip op. at 17 (Ga. Jan. 5, 202 6) (citin g Hall, 310 Ga. at 71 9 – 20 (quot atio n marks omitt ed)). A nd, i f there i s ev iden ce in th e re cord t o supp ort the hab eas court’s fa ctual f indings, t hose “fact ual findings c annot be found to be cl early er roneou s.” I d. (ci tati on omi tted). “W e mus t als o yield t o the jud gment of th e ha beas c ourt with resp ect t o the credi bili ty of wi tness es w ho tes tifie d at the hab eas p roceeding s.” Id.

14 (cit ing Humph rey v. Wal ker, 294 Ga. 855, 860 (2014) (quotation marks omitt ed)). “A habeas court’s d eterm inati on regardi ng the presen ce o r abs ence of an actu al confli ct o f in teres t is a mix ed ques tion of fact and law, which t his Cour t reviews de no vo.” Id. (clean ed up). As re flected by the rec ord a nd the findings of the habea s cou rt, Mullis began work in g as a cont ract publ ic def ende r in 198 2. In 1986, Mullis was appointed as a Spe cia l As sistan t Atto rney General to per iodica lly ha ndle Departm ent of Transp ortati on cas es. In 1990, Mullis was app oint ed to rep resen t Gibso n in his cr iminal tria l, a nd after Gi bson was convi cted of murde r and armed robbe ry, Mullis contin ued to repres ent Gibson in his di rect appe al. During the crimina l tria l, the Atto rney Gene ral appea red on behal f of s everal GBI analysts to whom subpoenas for records had been issue d b y Mullis. The Att orney Gene ral m ov ed to qua sh th e s ubpoena s and f or othe r relie f, and M ullis wit hdrew the subpoe nas. At no po int during Mul lis ’s repres entati on of Gi bson di d he disc lose his app ointme nt as

15 a Speci al As sist an t Atto rney G eneral to Gibson an d the t rial c ourt. See Gibson, 28 2 Ga. at 1 56 – 58. Assuming w ithou t dec iding t h at th ese ci rcumst anc es cr eated a pote ntial c onflict of intere st on Mullis’ s p art, we a gree with the habeas court that Gibso n failed to show tha t the c onflict adversel y af fe ct ed Mulli s’s repres entation of Gi bson. See Hui tron, sl ip op. at 17 (co ncluding that, e ven if there was a po tential conflict o f intere st, the defenda nt faile d to show that the c onflict “signif icant ly or advers ely ” a ffect ed cou nsel ’s rep resentati on of the d efend ant). See also Hall, 31 0 Ga. at 720 (noti ng t hat, to “ carry his burd en of pro ving” tha t couns el “provid ed i neffec tive ass is tanc e becaus e [co unsel] had a conf lict o f inte rest,” the def enda nt “must s how that an act ual conf lict o f interes t significa ntly a nd adver sely aff ected [couns el’s ] repre sen tation of [the defend ant ]” (clean ed up)). A revi ew of the re cord and our p rior d ecisi ons in Gibs on’s case s supp ort t he habe as cou rt’s con clu sion s tha t, desp ite any pote ntial conf lict of interest, Mullis diligent ly repre sented Gib son at trial and

16 on dir ect a ppe al, and Mullis’s separate work as a cont ract Sp ecial Assi stant A ttorn ey General fo r the D epartm ent of T ransp orta tion did no t impede or imp air his w illingness o r ability to fulfill his obliga tions to pr ofess ionally a nd s taunchly represent G ibson in his crimi nal cas e. In fac t, w hen this Cour t co nsidere d and denied Gibson ’s ap plic ati on fo r a cert ifica te of pro babl e cau se to ap peal the denia l of his f irst habeas p etitio n in 19 99, we conclud ed — in reject ing Gibson ’s ineffect ive ass ist ance o f cou nsel claim — that M ullis: (1) “ met wit h Gi bson many times befor e tri al ”; (2) “inves tigate d Gibson ’s cas e ” and “possible defe nses”; (3) “ fil ed several disc overy motio ns, includin g a Br a dy moti on ”; (4) “ successfull y mov e d for an indep endent psyc hol ogical evalu ati on ”; (5) “file d nu merous rel evant pretri al m otion s,” including motion s to su ppres s a nd a mo tion for change of venue; (6) “ inte rvi ewed key witness es ”; (7) “made ti mely objecti ons at tria l”; (8) “ inv oked G ibson ’ s youth and his lack of a family while gr owing up ” and “ impl ored th e jury to spare Gibs on ” during c losing a rgument; and (9) “ elect ed t o pres ent eviden ce i n the

17 senten cing phas e of G ibs on ’ s youth, his re morse, and his child hood without pare nts.” Gib son, 27 0 Ga. at 86 3 – 66. And, w hile the be tter practi ce wou ld certai nly have been for Mu lli s to di sc lose h is r ole as a Spe cial A ssi sta nt Att orney Gen eral to G ibson and the trial cou rt in comp liance with OCGA § 4 5 - 15 - 30, 7 we cannot say — given the facts an d circu mst ances presen ted in t his cas e — that Mullis ’s fa ilure ————————————————————— 7 In pertinent part, OCGA § 4 5 - 15 - 30, which was material ly the sa me during the relevant timeframe as i t is today, provides t hat, [n]otwithstanding t hat any attorney a t law under independent contract to the D epartment of Law has been ap pointed or designated either s pecially or generall y as an assistant attorney general and thus is identifie d with the State of Georgia as its representative for cases arising wi thin the scope of that appointment or de signation, repre sentation of a defen dant in criminal proceeding s by that assistant attorney general sh all not constitute a conflict of interest if that assistant a ttorney ge neral provides written dis closure of such appo intment or designat ion to the defendant prior to accepting em ployment by that d efendant or, when a court has appointe d an assis tant attorney gene ral to represent an indig ent criminal def endant, disclosure s to the defendant and to the court, to be ref lected in the rec ord of that court, such appoin tment or d esignation as assistant attorney general. See also 1984 Ga. A tt’y. Gen. Op. No. U 84- 27 (directing tha t Special Assistant Attorneys General comply with the disc losure r equirements of OCGA § 45- 15 - 30 in ordinary c riminal c ases and nev er represent a defendant in a d eath penalty case, reg ardless o f whether th e defendant might be wil ling to waive any potential conflic t).

18 to ma ke that disclos ur e adversel y af fecte d hi s re presen tati on o f Gibso n. With res pe ct to t he su bpoen as at i ssue, the record su pports th e habeas cour t’s con clu sion that Gi bson fa iled t o demonst rate t hat Mul lis withdrew the su bpoen as be cause of an y loy alty he fel t to th e Attorn ey Gen eral ’s office o r to f orfe it an y aspe ct of G ibson’s def ense. Gibson ’s clai m t hat Mu lli s withdrew the su bpoenas be cause h e wanted to av oid a c onfl ict wi th the A ttorn ey Gen eral ’s office, “wh ose approv al w as es sent ial f or h is job s ecurity,” is bas ed pu rely on specul ati on, and w e have he ld that spec ulatio n is insuffic ient to show a n actua l conf lict o f inter est. See Adams, 371 Ga. at 355 (determ ini ng th at a def endan t’s s pecula tion t hat his co unsel ’ s eff orts and str ateg ic choi ces were th e resu l t of a p otenti al confli ct of in teres t could not e stablish an a ctual co nflict of interes t). See al so Mahdi v. State, 312 Ga. 466, 470 (2021) (concluding tha t t he defend ant ’ s cl aim of a confli ct o f i nteres t was “ at bes t a m atter of th eory or specul ati on,” whic h was ins ufficient t o show an actua l conflic t of

19 interes t). Moreover, w hile G ibson sub mits tha t Mullis admit ted in his appell ate bri ef to thi s Cou rt i n 1991 t hat h e withdr ew the subpoen as under pres su re from t he A ttorn ey Gen eral’s offic e, see Gibson, 261 Ga. at 315, Mullis ’s testi mon y at th e habeas h eari ng belies that claim, and there is no evid ence that Mullis withdr ew the subpoen as to cu rry favor w ith th e A ttorn ey Gen eral. Instead, M ullis testifie d at the h abeas hea rin g that he wit hdre w the subpoe nas to avoid s anctions or bein g hel d in contem pt by the trial cour t, no t becaus e of any di vided loyal ties o n hi s part, and the h abeas c our t was ent itled to c redi t Mullis ’s testi mony. Gibso n also c onte nds th at the h abeas cour t erron eously based its den ial of Gibson’s habeas p etition on th e confli ct - of - int erest sta ndard set forth in Cuyler and that the appro pri ate stand ard to app ly in evalua ting Mullis ’s conf lict of interest is the sta ndard set fort h in Sallie v. State, 269 Ga. 44 6, 448 (1 998) (provi d ing tha t, whe n couns el is lab oring unde r a n obvious a nd impe rmiss ible c onflic t and the pen alty is of vast enorm ity, th ere i s no ne ed t o anal yze th e

20 advers e ef fect). However, Gibs on offe rs no compel ling reas on wh y th is Court should a pply th e unique standard articulat ed in Sall ie to the c onflict here, a nd we see none. See id. at 44 7 – 48 (hold ing that, where an at torn ey w as sim ultan eousl y empl oyed as a d efen dant’ s trial at torn ey an d “th e sol e judi cial law clerk” in the circu it w here the d efend ant w as b ein g trie d fo r m urder, th e confl ict was “ obvi ous ” and “c omplet ely imperm issi ble” — es peci all y given that t he defen dant faced th e death penal ty — and pr ejudi ce was pr esum ed). The decis ion ren dered by t his Court in Sallie ha s been ra rely applied and is limited to its dist inct factual circ umstan ces. See Fogarty v. State, 270 Ga. 6 09, 61 0 – 11 (1 999) (notin g that, although we app lied t he “ per s e p resump tion ” of prej udice s tanda rd in the “unique situa tion” pre sent in Sa llie, we ordina rily apply the Cuyler standa rd a nd focus o n wheth er “an actual c on fli ct of inte res t advers ely affec ted [the] lawy er’s perf orm ance”). A lthough this Court later appl ied the Sallie stan dard i n Howerton v. D anen berg, 27 9 Ga. 861 (20 05), the Court did so o nly “under the unique fac ts of th [at ]

21 case.” Id. at 86 3 (app lying Sallie ’s p resumptio n - of - prejud ice standard to cir cu mstan ces wher e an at torn ey had represen ted a defen dant in a mu rder tri al while als o represe nting the a ssistant distr ict att orney who was pr osecuting t h at d efend ant in a separat e civil lawsuit because tha t dual rep resen tati on was “c omplet ely imperm issi ble,” “u nderm ine[d] the adve rsari al pro cess [,] and call[ed ] into qu est ion th e r eliabi li ty of th e ou tcom e of proc eedin gs”). But many of us que stio n whethe r Howert on was decided correct ly. And, here, based on the rec ord be fore u s, we re adil y conclu de that the unus ual and egreg ious circum stan ces w arrant ing the app lication of a presu mpti on - of - preju dic e stan dar d as set out in Sallie and Howerto n are not pres en t, and a s such, we see no reason to deviat e from our appli cati on of th e Cuyl er standar d in this cas e. See Fogarty, 27 0 Ga. at 610 – 11. A ccor dingly, a s expl ained ab ove, Cuyl er is the appr opriate sta ndard to be applie d in e valua ting a co nflict - of - inte rest claim like Gibson ’s. S ee Cuy le r, 446 U S at 34 8 – 50. And, b eca use th e habeas

22 court ap plied th e Cuyl er stand ard to con clu de th at, even if a pote ntial c onflict exis ted in this case, Gibson failed t o me et his burden to show that Mul lis’s repres entati on was “s ignifica ntly or advers ely ” affecte d by t he conf lict — a co nclusio n that is supp orted by the rec ord — w e concl ude th at the habea s court did not err in denyi ng G ibson ’s cl aim f or h abeas rel ief. Se e H uitron, slip op. at 21 – 22; Hal l, 31 0 Ga. at 72 1. Judgment affirmed. All the Just ice s concu r, ex cept Peters on, C.J., not pa rticipat ing.