Huitron v. Toby - Appeal of Habeas Corpus Denial

In th e Supr eme C ourt o f Georg ia Decided: Feb rua ry 3, 2026 S25A012 4. HUITRON v. TOBY, W ARDEN. M C M I LLIAN, Justice. Alexa ndro H uitron a ppeals the denial o f his habea s petit ion stemming from his convi ctions fo r felon y mu rder an d othe r crim es aris ing fro m the death o f his thre e - ye ar - old d aug hter, E smer elda Gomez. 1 Hu itron arg ues th at h is appel lat e couns el s uffer ed from a n 1 The crimes we re committed on May 31, 20 10. In June 2011, a Clayto n County grand jury j ointly indicted Huitron and his wife, Ma rgarita Gomez, for malice murder (Count 1), three counts of felony mur der (Counts 2 - 4), four counts of aggravate d battery (Co unt s 5, 8 - 10), two counts of aggravated assault (Counts 6, 11), cont ributing to the deprivation of a minor (Count 7), a nd six counts of cruelty t o children (Count 12 - 17). Gomez was sep arately indicted f or two additional coun ts of contributing to the deprivation of a minor. A t a joint jury trial in October and November 2012, Huitron was found guilty on Counts 3, 4, 6, 7, 11, 12, and 15 - 17. Cou nts 10 and 14 were nolle prossed durin g trial; Huitron was acquit ted on the remaini ng counts. On November 2, 20 12, the trial court sentence d Huitron to serve life in pri son without the pos sibility of parole for felony murder predicated on aggravated as sault (Count 3), a concurrent term of life in prison with out the possibility of parole for felony murder predicated on contributing to the deprivation of a minor (Co unt 4), a consecutive term of 20 years in prison for aggravated ass ault (Count 11), a consecutive term of 1 0 years in prison fo r cruelty to children (Count 1 6), and a 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 m e Cou rt 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 t he Georgia Repo rts will contain the final a nd officia l text of t he opinio n.

2 actual con fli ct of in terest, and the refo re h e is ent itle d to a n ew di rect app eal with c onflict - free cou nsel. We affirm be cau se the evi denc e presen ted a t th e h abeas h earin g s upport s the ha beas cour t’s fi ndi ng that, even if a conf lict was prese nt, it did no t signific antly or advers ely a ffec t Hu itron ’s app ella te cou nsel ’s pe rfo rmance. 1. Hui tron and h is wife Marg arita G om ez w ere c harg ed an d convi cted fo r Esm erelda’s dea th. In our 20 17 deci sion affirm ing their convi ctions, we recoun ted th e evid ence fr om th e joi nt tri al as f ollow s: On M ay 31, 2010, G omez an d Hui tron sp ent th e day at the ir apart ment in Fore st Par k with the ir two daugh ters, Esme relda an d two - y ear - old Perla. Joseph, Gomez ’ s younger son b y another man, did no t live with them. A roun d 8: 00 p.m., Esm erel da su ffere d a sev ere head injury, res ulting in a s kull frac ture a nd brain and retinal hem orrh agin g. A fter A ppell ants call ed 91 1, Esmerel da w as taken to H ugh es Spald ing Chi ldren ’ s consecutive term of twenty years in prison for cruelt y to children (Count 1 7). The other convictio ns were merged for sentencing purpos es. Huitron timely filed a motion for new trial, which w as amended throug h new counsel on September 4, 20 13. Following a he aring, the trial court denied the motion f or new trial, as amended, on Decem ber 11, 2015. On appeal, t his Court vacated Huitron’s conviction s on Counts 4, 11, and 16 to correct s entencing errors, but affirmed the remai ning convictions. Gomez v. State, 30 1 Ga. 445 (2017). Huitron timely fil ed a p etition for habe as relief on June 7, 2021. The hab eas court entered an order denying the ha beas petition on August 9, 2024. O n September 10, 202 4, Huitron filed an applicatio n for a certificate of probable cause to appeal to this Cour t, which was granted, and his case was doc keted to this Court’s August 2025 term an d submitted for a de cision on the b riefs.

3 Hospi tal an d lat er fl own t o Eg lest on Hosp ital, wh ere sh e died on Jun e 3. Gomez and H uit ron w ere interv iewed sep arat ely several tim es by offic ers f rom th e Forest Pa rk Pol ice Depa rtment, first on the night of E smerel da ’ s injuries, again a few days later, and final ly on Jun e 10, when they each pa rticip ated in a re - ena ctmen t of how they suppo sedly f ound Esme relda. Each t ime, a Spanis h - speaki ng pol ic e off icer or i nterp reter was us ed. Initially, Gomez and H uit ron b oth said t hat when Esmere lda was injure d, the y were was hing dishe s or about to start washing d ishes t og ether in t heir k itche n while th e two girls we re pla ying in the ba ck bedroo m. They hear d a scream f rom on e of the girl s and r an to the bedroo m. In anothe r ve rsion given later by Gom ez, H ui tron was on the bac k patio grillin g and she was in the kitc hen when they heard the s crea m. Both par ents cla imed that th ey f oun d Esmerel da lying on he r back on the floor between a small c hild ’ s table and one of the tw o beds in th e room. Accordi ng to Gom ez, Esmerel da l ooke d as i f she w as st rugg lin g to speak or get up, b ut then s he fainte d. Accor ding to Huitron, Esmere lda was unc onsc ious and ha ving troub le bre athing, with a small amoun t of bl ood on her face. T hey m oved Esmer eld a into t he living room, and one or both of t he parents perfo rmed C PR whi le an am bula nce w as called. Gomez then car ried E sm ereld a out to wai t for th e ambu lan ce. Both pa rent s clai med t hat they di d not see wh at caused Esmerel da ’ s injuries but hyp othe sized that she had falle n while jump ing on the bed, beca use she liked to play on the bed. D r. Jo rdan Green baum, w ho was the medi cal direc tor of th e C enter for Saf e an d He althy Chi ldren at Childre n ’ s Healt hcar e of Atl anta and h ad been call ed to

4 cons ult on Esm erelda ’ s case at E gles ton becau se the treati ng doc tors sus pected chi ld abus e, cal led Gom ez on June 2 to g et a m edical his tory for Esm ereld a. The d octor asked Gom ez specifi call y about a bi g brui se Es merel da had on he r abd omen, wh ich G om ez att ribu ted to t he chi ld h itting he rself o n furnitur e. Dr. Greenba um, who notic ed num erous bru ise s on Es merel da ’ s bel ly, als o asked Gom ez if she could think o f any injuries she ha d seen on Esmerel da ’ s skin and Gomez s aid she co uld reca ll only one bru ise; s he h a d not not iced any o ther bruis ing. The n ext day, Offi cer K aren Hen ry, wh o was assig ned to inves tigat e in Esmerelda ’ s cas e becaus e she spec ialize d in child abuse cas es, inter viewed Gome z. Gomez s aid that s he nev er saw an y bruis es or mar ks on Esmerel da, th at the on ly oth er inj ury E smereld a had suffer ed was eight da ys earlie r when she fell in t he bathtub, and tha t Esm erel da had fa llen out o f be d while sleepi ng bu t ha d not i nju red hers elf. Off icer Henry testifi ed, h ow ever, th at th e pic ture s sh e saw of Esm erel da showed brui ses on the s id e of h er abd omen, fro m her armpit to h er di aper area, tha t had begun to h eal. When e xamining Appe llants ’ apartm ent abou t thr ee hours afte r the 911 c all, inv estig ators foun d clum ps of dark hai r in the bath room and outs ide, on e to tw o feet from the con cret e patio. They also fou nd spots of dry blood on the flo or i n th e fr ont bedro om, in th e h allw ay bet ween the bathroom and bed rooms, and on th e fl oor in th e back bedro om. Th e swabbi ngs t aken fro m these s pots m atch ed Esmerel da ’ s DN A. Sev eral offi cers testi fie d th at th e apartmen t w as v ery ne at, i nclu ding the ki tchen and back bedro om, and the beds look ed li ke th ey had recen tly been made; althou gh t he c omfo rter on o ne of the beds loo ked a little dishev eled, that wa s not the bed ne xt to whic h the

5 paren ts sai d they foun d Esm erel da. At trial, f our m ed ical ex per ts test ifi ed for the State. Dr. Am ita Sh rof f, who t reate d E smerel da at H ug hes Spa lding and was qualifie d as an expert in ped iatr ic emerg ency m edici ne, te stif ied t hat E smer elda had a “Battle ’ s sign” — br uising on t he side of her fa ce, behind her ear, and t rac ki ng dow n her n eck — which indica tes a skull f rac ture, a nd fix ed a nd dilat ed pupils, which indi cate brai n dam age. She al so had bl ood in her ear and on her nose, as wel l as bruis es on her n ose, chi n, ba ck, and abdomen. Th e ch il d’ s abd omen w as disten ded an d s he h ad an abra sion on her lef t flank. The doctor te stified that ther e was no way a fall fro m a bed co uld have cause d thes e injuries; they could be caused only by somet hing trauma tic li ke a car acci dent, fal li ng off a 15 - to - 20 story buil din g, or hav i ng h er head sl amm ed ont o a h ard object lik e concret e or a bathtub. Dr. Raj amani Iy er testi fied that sh e was Esmerel da ’ s pediatric ian, and at all her visits, including the las t vi sit fou r week s be fore th e inci dent, Esm erel da seemed norm al. A year befo re tri al, t he pro se cutor h ad shown Dr. Iyer an au tops y ph otog raph of Es mer elda ’ s head, an d Dr. Iyer, wh o was qu al ified as an expe rt in pediat ric medi cine, testi fied b ased on that p hot ogra ph that Es merel da ’ s injuries we re not c onsis tent with a fall from th e be d an d look ed li ke ch il d abuse. Dr. Iye r als o tes tified t hat the injuri es could h ave been c aused by a chair, conc rete, or o ther hard obje ct. Dr. Green baum, who was quali fie d as an expe rt in forens ic pa tholog y and chil d abuse m edicin e, al so w as presen t at th e r e - enactm ent. Dr. Green baum tes tifi ed that Es mer elda h ad a complex Y - shap ed skull frac ture

6 and sub dural and sub - retina l hemo rrhages. She expla ined t hat the sub - retin al h emor rhagi ng w as so severe that i t c oul d only be c aus ed by a few th ing s, includin g majo r head traum a and leuk emia (a nd there was no ev iden ce that Es merel da had l eukemi a). D r. Gree nb aum fu rther exp lain ed th at Esmerel da ’ s injuries inv olved h igh acceler ation and d ecel erati on f orces of th e sor t seen in a high - speed ca r acci den t, a fall from th ree or more st ories, or b y a per son m uch bi gger th an Es merel da slamming her he ad on the f loor. Dr. Gre enbau m al so tes tified t hat Esmer elda had nume rous injuries to her torso and tw o ri b fra ctur es wh ich had beg un t o h eal, meani ng th ey were at l east s eve n to ten days ol d. D r. Gree nbaum conclud ed f rom all of this infor mation t hat Esmerel da ’ s i nju ries were cause d by abuse. The St ate ’ s final w itnes s was D r. Lora D arri saw, th e GBI m edical exam iner w ho p erform ed Esm er elda ’ s autopsy and who w as qual ified as an ex pert i n fo rens ic pathol ogy and p ed iatric for ensi c p athol ogy. Dr. Dar risaw testifie d about scat tered bruis es on the chi ld ’ s body, includin g a colle ction o n the right side of her bo dy and one on her j aw, w hi ch w oul d normal ly be seen afte r fo rcefu l grabb ing of the hea d; altho ugh it wa s possible, but not likely, t hat t he bruis e on Es mere lda ’ s chi n was cau sed b y medical interv ention, no ne of t he other br uises co uld have been. She ad de d that Esmer el da ’ s n eck h ad been “impact ed, ” mean in g it had been hyperexten ded ov er a curved surfac e or the co rne r of a hard object. Dr. Darris aw, w ho was also p resen t at th e re - ena ctm ent by Appe llants, examined t he cha irs in the bedro om and conclu ded th at ev en thou gh th ey were me tal, they were small, fold - up cha irs t hat could not have caused t he inj uries. The d octor t esti fied th at Esmerel da ’ s injuries could h av e been cau sed on ly by “[h]er h ead h it[ting]

7 somethi ng very, very h ard th at doesn ’ t move, ” so the docto r coul d not s ee how Esm erel da cou ld h ave sus tai ned her inj uries by falling o n anyt hing in the be droom; the only sur face t hat seemed consist ent with the injuries w as the con crete p ati o outsi de th e apartm ent. Dr. Dar risaw expla ined t hat Esm ereld a ’ s neck injur ies a nd the bleed ing in her e yes indic ated t hat she was moving f ast, which could be caused by her falling fr om a height g reater tha n her ow n o r some on e pick ing her u p an d m ovin g her body with a lot of forc e befor e she imp acte d a surfa ce. Dr. Darris aw al so n oted that the re w as a bui ld - up of iro n in Esmerel da ’ s brain, indicat ing that s he had suffe red an earlie r h ead i nju ry. Dr. Da rris aw r ul ed the caus e o f dea th to be blun t forc e trau ma an d con clu ded th at it w as n on - accid ental. Sever al witne sses te stified about the re latio nship between Esm erel da and h er parents. An offi cer who talke d to Go mez at the ho spital on t he night Es mere lda was tak en th ere testi fie d tha t Gom ez cri ed bri efl y wh en she wa s told that Esme relda m ight die. Anot h er offi cer, who sp oke to Gomez lat er that night, t estifie d that when he to ld her that Es mereld a might die, she said s he believ ed th at Es mereld a wou ld b e okay, but sh e star ted cryin g wh en he to ld h er tha t she w oul d not b e abl e t o take her oth er dau ght er, Pe rla, ho me. Joanna D ua rte, one of G omez ’ s friends, test ified tha t Gomez h ad s aid Esm ereld a was th e “produ ct of a rap e” and th at Gom ez sent the chi ld to Mexi co when she was ten or elev en m on ths ol d. A round Novem ber 2009, wh en Esmerel da w as abou t thr ee, Gom ez asked Du arte to go get her an d bri ng h er back. Esmer elda had lice when s he return ed, and w hen Duarte g ave Esm ereld a to G omez, she o ffer ed t o get Gomez a prescri ption for lice sha mpoo.

8 Instead, Gom ez s haved o ff al l of Esmerel da’s h ai r to preven t th e li ce f rom sprea din g to Perl a. D uarte tes tif ied that Gom ez al ways showed Perla more affec tion, s ayi ng that Perl a was pretti er be caus e sh e looked lik e Hu itron and c alling Esm ereld a ugly. Duart e also obs erve d that Esmerel da di d no t seem very att ach ed to h er mo the r and when ever Esm er elda s aw Du art e, she wou ld s ay s he wanted to g o with D uarte. An a Mald onado, w ho sometim es c ared for the chil dren, tes tified to the chi ld having a similar ly str ained rela tionship wit h Huit ron, who wor ked in Co lumbus, Ge orgia during t he week. On one occ asion, M ald onado d rop ped Esmerel da o ff wi th him, and w hen he grab bed her, Esmere lda rea cted in a wa y that indicate d she did not want to be left with him. A casew ork er wit h th e Babies Can ’ t Wait pr ogram of the Geo rgia D epartm ent o f Health testi fie d that w he n she came to do an eval uation of Go mez ’ s s on, Josep h, i n Novemb er 20 09, J oseph a nd E smereld a l ooked maln ouris hed, an d Es mereld a was dress ed in torn cl othes and lo oked sm all for her age and frig htened. This promp ted the casew orker to ma ke a refer ral for Esmerel da, as wel l as Jo seph, to re ceiv e servi ces from Babies C an ’t Wait, bu t wh en th e cas ework er tri ed t o follow up w ith G omez, h er c ont act num bers h ad bee n discon nect ed and sh e had m oved. The ca sewo rker was l ate r abl e t o tra ck d own J ose ph, disco vering t hat he wa s living wit h Ma ldona do and lo oked health y and hap py. T estim ony show ed th at G omez gave Joseph, wh o was born arou nd Ju ly 2009 an d was not Huitro n ’ s son, to her frien d D uarte ’ s sister aro und Octobe r 200 9. Th e si ster care d for Joseph for abou t fi ve months, during which time Go mez did not vis it or provid e any m oney f or h er chi ld. T he si ster ev entual ly retu rned

9 Joseph to G omez becaus e sh e had f our k ids o f her own and was hav in g money pr oblem s. On Mar ch 8, 2 010, Gomez gave Joseph to M aldon ado, and G omez sig ned a n ot arize d agreem ent t hat s he w oul d leave Joseph in Mald onado ’ s custody pe rmane ntl y. Gom ez tol d Mal donad o tha t J oseph was sic k and she c ould not ta ke care of him. Maldon ado also underst ood that Huit ron d id not wa nt Josep h in his home. Gomez an d H uit ron di d no t tes tify at trial or call any witn esses. T he d efens e the ory for both A ppell ants was that Es merel da h ad been inj ured i n an acci dent. T he j ury reject ed that theory a nd found Ap pellant s guilty o f felony murder an d othe r charges. Gomez v. State, 301 Ga. 445, 446 – 50 (2017) (fo otno tes omi tted). Afte r this Court af firmed his co nvictio ns, 2 Huitron timely filed 2 On appeal, Huitron argued tha t the evidence w as constitutionally insufficient, that a new trial was required because he was re quired to share a n interpreter with Gomez, that the co nvictions for aggr avated assault and firs t and second degree cruelty to childr en were mutually e xclusive, and that he was entitled to a new trial base d on a state ment that G omez made at sentencing, which Huitron clai med was “n ewly discovered evidence.” See Gomez, 301 Ga. at 445. Huitro n also asserted that tr ial counsel was ineff ective for the following reasons: (1) failing to presen t experts to rebut the St ate’s four medic al experts, (2) failing to object to the testimon y of two of the State’s ex pert witness es, (3) failing to ensure tha t Huitron had a sep arate interpreter; (4) failing to as k for a jury instruction about the interp reters, (5) failing to object to testimony from a witness about Huitron’s relat ionship with Gomez’s son, (6) failing to move to sever the trial, (7) w ithdrawing a pre vious request for a cha rge on involuntary manslaughter, and (8) failing to object to three aspects of the testimony by the State’s experts abou t Esmerelda’s injuries. See id. Gom ez also asserted seve ral different claims. Se e id. at 459 - 61. Alth ough we corrected a sentencin g error, we otherwise rej ected H uitron’s clai ms and affirmed his convictions and sentences. See id.

10 a peti tion f or h abeas corpu s, asserting in par t tha t John Kr aus, his appell ate coun sel, labored un der a confl ict of i nte rest b ecaus e he worked for th e same publi c def ender ’s of fice th at represen ted Huitro n’s co - defen dant, Gomez, at trial. In Huitr on’ s view, that meant th at K raus could n ot ass ert a cl aim on appeal that tri al couns el wa s in eff ective for failing to argue that Gomez was sol ely respon sibl e for Esmerel da’s death and c oul d not cal l Gom ez as a witnes s at the m otion - for - new - trial hearin g to su pport that cla im of ineff ective trial co unsel. At the h abeas h earing, Kr aus te stifi ed tha t he w as a publ i c defe nder with t he Clay ton Co unty Public Defe nder’ s Office when he repres ente d Hui tron at his moti on for new trial and on dir ect appeal. Kraus b ecam e conc erne d abou t a po tenti al con fli ct in his repr esentat ion of Huit ron, since the Clayto n County Public Defende r’s Offic e h ad repre sent ed G omez at thei r joi nt tri al. Krau s rais ed the conf lict issue wit h his super visor, who told him to rema in Hu itron ’s appell ate atto rney. Kra us did no t mentio n his conf li ct concern s to the t ri al cour t or th e prosecu tors on th e cas e.

11 When as ked at th e hab eas h eari ng w hat h is concern s w ere, Kraus testi fied that it was his unders tanding that any at torne y who works i n the s ame offic e as a t ri al att orney “i s b asical ly d eemed, under the con flict law ru les and r eg ulati ons l aws, to b e th e sam e as – as r epres enti ng th e cod efend ant – or as re presen tin g the defen dant.” Kraus al so testifi ed that he “like ly … disc usse d the Gomez cas e a t the t ime” of the t rial w ith Gomez ’s trial atto rney, Kevin Sc humaker. Sch umak er confirm ed that he and K raus “sp oke daily” about t he case during t he trial and t hat Krau s lat er disc ussed the p ossible conflict co ncerns he had wit h him. Accordi ng to Huitron, this co nflict preven ted Krau s from “ questi on [ing ] M argari ta Gom ez about he r culpab ility at [the motion for new ] tri al, or to h old a he arin g wh ere she m igh t be ques tione d to determi ne th e sou rce of E smerel da’s inj uries. ” I n partic ular, Huitr on poi nts to a s tateme nt Gomez made at sen ten cing: “A lejan dro, h e’s a good fat her. H e was almos t not a t the h ouse, so h e did n’t s ee. I di d not s ee wh at h appen ed. T hey d on’ t hav e p roof. The y don ’t h ave any witnes s that saw what happe ned.” Hu itron argu es that witho ut this

12 conf lict, Kraus would ha ve b een able t o inve stigate f urther into t his statem ent rathe r than just present ing it as newly dis cove red eviden ce. Kraus testif ied t hat the co nflict “hamst run g me in several ways. F or in stan ce, … I obv ious ly could not t alk to [Gomez ] ab out her sta temen t [at se ntencing ]. That wa s for all kinds of rea sons and, fra nkly, had I been ab le to delve into that fur ther, I would ha ve actuall y been a ttack ing [he r trial att orney ]’s repr esen tati on at t he sent encing. ” Because of this alleged con f lict, Kraus said that he could on ly rais e the s tatem ent by Gom ez on a ppeal as “newly discov ered evid ence” whi ch h e beli eved w as a very weak clai m. Gomez also testi fied at the h abe as hea ring. She s aid tha t Huitro n did not kill their child and t hat she knows t his becaus e “[she] w as ther e.” Wh en asked what had hap pened, G omez recoun ted th at a week befo re th ei r chil d’s d eath, Gom ez drop ped their child while b athing he r, which ca used her to hit her head har d agains t the bathtub. 3 Fo llowing t hat, “s he was not act ing normal. ” 3 Gomez told a similar story wh en she was interviewed by law enforcement officers after Esmereld a’s death.

13 After re coun tin g thi s expl anation of wh at happ ene d, Gomez said, “I woul d say th at … i t’s my fault … I’m sor ry.” G omez went on to say that if someon e h ad appro ached her ab out t esti fyin g about t he bathroom in ciden t and told he r th at i t wou ld caus e t he Sta te to d rop their ch arg es agai nst Huitron, she would hav e done so. A ccordin g to her ap pellat e co un sel, w ho als o testi fie d at th e habe as hea rin g, Gomez co nsistently claimed th at E smereld a’s d eat h resu lted f rom an acci dent on h er part and th at Gom ez n ever, even private ly, admitted t o intentio nally kill ing he r child. Afte r the hear ing, the h abeas co urt denied Huitron’ s habeas pet ition, conc luding tha t Huitr on “fa iled to establis h an act ual confli ct of i nt eres t o r tha t any c on fli ct affe cted appel late couns el’s perfo rmanc e. ” T he c ourt re as oned that the Cl ayton County P ublic D efende r’s O ffice never s imu ltaneou sly repre sent ed Hu itron an d Gomez and that Huit ron’ s trial an d appel late couns el had no conflic t becaus e Krau s w as a pu blic d efend er an d Hu itron’s t rial cou nsel was privat ely retain ed. Further, Kraus ca lled a nd questio ned bo th Hui tron’s an d Gomez ’s tri al cou nsel at the m oti on for new tri al

14 hear ing despit e hi s all eged c oncern s about a c onfl ict and raise d eight ineffe ctiv e assi stan ce of coun sel claim s again st Hui tron’s t rial couns el on direct appeal. The co urt al so foun d th at the reco rd showed that Kra us ag gress ivel y purs ued these clai ms. A nd t he ha beas cou rt determine d that “Kra us could ha ve raised a cl aim t hat Gom ez w as cu lpabl e by al le gin g ineffe ctiv e assist ance ag ain st [Hu itron ’s] t rial couns el – a retain ed atto rney not employ ed by the p ubli c defende r’s offi ce.” The cou rt t hus conclud ed, altern ativ ely, t ha t, “even ass uming a [p otent ial] conflict ex isted becaus e of K raus’ repre senta tion of [Hui tron], [he] can not sh ow that such a conflic t ‘signific antly and adver sely affe cted co unsel’s repres enta tion of him.’” 2. Huit ron conte nds that h e sh oul d be pe rmitt ed to h ave a new dire ct appea l with co nflict - free cou nsel becaus e his appel lat e coun sel “suffere d from a confli ct of in terest th at pr even ted him from inv estig ating whether Marg ari ta Gomez c ommi tted t he murder, or calli ng h er to tes tify to w hat actuall y oc curre d in thi s case.” Spe cifically, he claim s that b ut for the co nflict, his appe llate couns el

15 would ha ve asser ted an i neff ective as sistan ce of coun sel cl aim based on faili ng to rai se th e def ense th at Gomez sol ely commi tted the murder and th at appel lat e coun sel shou ld h ave c al led Gom ez as a witnes s to supp ort tha t claim. We disag ree. “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 roce edin g, and di rect appe al. One c ompon ent o f th e ri ght t o the ef fectiv e as sis tance o f cou nsel i s the righ t to repr esent ation that is fre e of actual con fli cts of i nte res t. ” Hal l v. Jacks on, 310 Ga. 71 4, 72 0 (2021) (cleaned up). To demons trate ineffect ive assis tance bas ed on an ac tual conf lict of i nt erest, H ui tron is “not requ ired to pr ove that if [app ellat e coun sel] h ad rai sed th ose cl aim s, t hey w oul d have had a reas onabl e pr obabi lity of su ccess; ” he has th e bu rden o nly to show t hat a n “actua l conflic t of inte rest … significa ntly a nd advers ely a ffect ed” K raus ’s rep resen tation of H uitr on. I d. at 723. “A potential co nflict, ho wever, is insuffic ient to impugn a cr iminal convi ction.” Id. at 721 (cita tion and p unctuatio n omitted; emphasis in origina l). Instead, “ for purpose s of e valuating a n ineff ective

16 assist ance clai m, an actu al confl ict of i nteres t me ans p recis ely a conf lict that af fec ted c ounsel ’s pe rform anc e – as opposed to a mer e theo retica l division of loyaltie s.” Adams v. State, 317 Ga. 342, 351 (2023) (cle aned u p; emphasis in original). See a lso Dill s v. Weav er, S25A136 7, sli p op. at 18 (2026) (“Wh en ev aluat in g a clai m of ineffe ctiv e assi stan ce of cou nsel based on a confl ict of in teres t, the crit ical que stion is whe ther the conf lict sig nifica ntly af fected the repres enta tion, not w heth er it affect ed the outcom e of th e under lying pro ceed ings.” (cleaned up)). “The conf lict mus t be palpabl e and hav e a subst anti al bas is i n fact. ” Hall, 310 Ga. at 72 1 (punct uatio n omitt ed; quoting Lamb v. State, 267 Ga. 4 1, 42 (1996)). “When revi ewin g a h abeas cou rt’ s deci sion on a d efend ant’s attorn ey con flic t of i nte rest clai m, we a ccept the c ourt ’s fac tual findings unless t hey are c learly err oneous, but we apply the law to those f acts de n ovo.” Id. at 719 – 20. “A habea s cour t’s fact ual finding s cannot be fou nd to be clearl y er roneou s if th ere i s ev idence i n th e recor d to suppor t such f indings.” Smi th v. Ma gnuson, 29 7 Ga. 210, 212 (2015).

17 Here, even a ssuming that H uitro n’s app ellate couns el had a pote ntial conf lict of int erest, we agre e with th e habeas cour t’s conc lusion that any p otentia l conflict did not signific antly or advers ely a ffect K raus’s represen tation of H uitron. W hile Kr aus claim ed t hat the conf lict “ha mstrung [him] in seve ral ways, ” incl udi ng not b ein g able to “t alk t o [G omez] abou t her s tat ement, ” and th at he was reti cent a bout “ atta ck[in g] som ebod y in [Kraus ’s] own offi ce,” th e habe as - cou rt record belie s th ose asserti on s. Se e Tolbert v. State, 298 Ga. 1 47, 15 2 (20 15) (“T he t rier of fact is not oblig ated t o bel iev e a witn ess even if th e testi mony is uncon tradi cted and may acc ept o r reje ct any p orti on of the t estim ony.” (clean ed up)). Kraus qu est ioned Schu maker ext ens ivel y at the m oti on for new tri al hear ing. Mor eover, Kraus raised ei ght i nef fecti ve assi stan ce o f couns el cl aims agai nst H uitron ’s trial cou nsel, and nothing in t he record supp orts wh y Krau s could not have asse rted a ninth ineffe ctiv eness clai m based on the fail ure t o rais e the d efen se t h at Gomez w as s olely res ponsi ble for t he mu rder. I t is al so u nclea r w hat ben efit H uitron cl aims w oul d have been

18 gain ed by h avi ng G omez testi fy. Huitro n argue s generally that, if not f or the conflic t, Kra us would have b rought a claim t hat tr ial couns el was ineffe ctive fo r not blaming Gome z enough a t trial. But Huitro n has not expla ined why Kraus needed Gom ez ’ s te stimo ny to suppor t tha t clai m, be caus e Huitron has not ident ified wha t spec ific defici ency of t rial cou nsel cou ld ha ve b een all ege d in that cl aim that could be prov en or support ed by Gomez ’ s testim ony. The for gone claim could not hav e been t hat tri al cou nsel s hould have calle d Gomez a s a witn ess a t tri al: G omez was a co - defendant, so she co uld not hav e be en fo rced t o tes tify. If not th at, then w hat el se sh oul d tria l counse l have done d ifferently? And ho w would Go mez ’ s tes timony ha ve shown tha t tria l counse l was deficie nt (a nd that Hui tron was prej udi ced)? H uitron does not say. Pu t si mply, Hu itron has not drawn a con nec tion be tw een appel la te coun sel ’ s being ‘ hams trung ’ by not b ein g able to cal l Gom ez and a sp ecifi c i neff ective assist ance cl aim that app ellate cou nsel was for ced to forgo. And th at is espe cially so since b oth Schu maker and Huitron’s tria l couns el “said that th eir mai n def ense str ategy at trial was to argue th at th e

19 cause of Es mer elda’s in juri es wa s an accid ent, and, to some ext ent, to try to d eflect bl ame ont o their cl ient’s co - defendant. ” G omez, 301 Ga. at 451 – 52. Moreov er, at th e habeas hearin g, Gomez testi fied to a si mil ar story that sh e to ld bef ore tri al – th at Esm erel da was inj ured b y accid ent in the ba throom, and her appel lat e coun sel testi fied that at no po int did Gomez admit that she co mmitted the m urder. There is no evi denc e that Gom ez wou ld h ave admitt ed ki ll ing Esmerel da intent ionally if called at the mo tion for ne w trial hea ring; to the contra ry, th e evi den ce pr esent ed at the h abea s hea rin g was that sh e had never, even pr ivate ly, ad mitted killing Esm ere lda int entio nally and o nly admit ted “fault” b ased on th e bath room incident. Thus, Huitro n has not shown ho w calling Gomez as a wit ness would have furthe red t he in effecti ve as sistan ce of couns el clai m such t hat t he failur e to call her as a witne ss did not significant ly and adversel y affec t Krau s’s ability to b ring the inef fect iveness c lai m. See Burger v. Ke mp, 48 3 US 776, 784 – 85 (1987) (affirming dist rict court ’s conclu sion that a conf lict did n ot c ause th e l awyer to f orgo a “less er

20 culpabi li ty argu ment” as appel lan t coun sel’s d ecis ion to “foreg o [sic] [a les ser culp abili ty a rgumen t] h as a soun d s trat egic basi s” be caus e “the pr ocess of win nowi ng out wea ker clai ms on appeal and focu sin g on thos e m ore lik ely to p rev ail, far from bei ng ev idence of incom peten ce, i s the hal lm ark o f e ffecti ve ap pell ate adv oca cy.”); cf. State v. Abernathy, 289 Ga. 603, 604 - 0 5 (201 1) (“A sig nifi cant eff ect on the re pres entat ion m ay be fou nd, for examp le, w here c ouns el is shown to hav e ref rain ed fr om r aisin g a pot ent ially merit oriou s issue due to the con fli ct.” (emph asis added)). Furth ermo re, even a ssuming t hat Kraus was p rec lud ed from calli ng G omez as a wi tness becau se sh e w as a f ormer cli ent, Kraus did try to cas t blame on Gomez witho ut having her testif y. He argued at the motion for new t rial hearing that G omez was an “exc ulpator y witnes s” due t o the statem ent sh e ma de at s enten cin g that it was “[he r] fault.”. Additionally, the r ecord sh ows th at Kraus, at the motion for ne w tria l hearin g, ack nowl edg ed th at there w as eviden ce th at “sh owed Ms. Gom ez w as mor e apt t o h ave been the perpet rato r th an M r. Hui tron.” And while he did not e xplicit ly argu e

21 that Gom ez kill ed Es merelda, K raus als o p ointe d out a l ack of “co ngruity of intent” be tween Huit ron and G omez, as H uitron “ w a s total ly okay with the c hild ” while Gomez was the one w ho did not like the child. Thi s rebuts Krau s’s t estimo ny that he fel t “hams trung” in cast ing bla me on Gomez due to a ny conf lict bas ed on his loyal ty to G omez as a form er c li ent. T o th e cont rary, th e evi denc e supports the hab eas cour t’s concl us ion that the potentia l conf lict d id not comp romi se Krau s ’s repr esen tation. See Abernat hy, 289 G a. a t 605 (conc luding that there was n o ac tual c onfl ict where “the tria l court ex press ly n oted th e absen ce of any evi denc e that t he confl ic t ‘color ed cou nsel ’s ac tion s duri ng th e tri al’… Si mply put, ‘[the app ellant ] has not shown in t his ca se ho w his att orne y’s conflic t caused divi ded l oyalt ies [or] comprom is ed h is att orney ’s repres enta tion of him.’”). Because the hab eas cou rt’ s fin ding s – that Kraus wa s not precl uded by an y potential c onfl ict fr om ass ertin g an inef fective assist ance cl aim bas ed on the defen se t hat G omez was s olel y respon sibl e for the m urde r – are support ed by th e record, we

22 conclu de th e tri al cour t was corr ect th at th e rep rese ntation was n ot sign ifi cantly or adv ersel y aff ecte d by the p oten tial con fli ct. See Williams v. S tate, 302 G a. 40 4, 412 (201 7) (no actual con flict of interes t wh ere th e reco rd d id not i ndi cate “ that Ap pellan t’s c oun sel bypass ed an y me ri torious de fense … or th at couns el’s abil ity to cros s - exami ne [the co - indictee ] was con strain ed in any w ay” but r athe r that “Ap pellan t’s counsel condu cte d a vigorou s cross - examina tion”). Cf. Dill s, S2 5A13 67, slip op. at 27 (co ncluding that tr ial counse l had an actua l con fli ct of i nter est th at adv ers ely aff ected hi s repres enta tion because cou nsel rep resen ted bo th def endan ts bef ore trial and learned tha t the co - defend ant may have been sol ely respon sibl e for the cri me, bu t decl in ed to as sert that defen se at t rial, inste ad rel ying on a d efen se th at was n ot su ppor ted by the evi denc e). Judgment a ffi rmed. Al l the Just ices conc ur.