In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-2632

L EVELL T AYLOR,
                                                Petitioner-Appellant,
                                  v.

R ANDY G ROUNDS, Warden,
Robinson Correctional Center,
                                                Respondent-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 10 C 7489—Gary Feinerman, Judge.



       A RGUED M ARCH 1, 2013—D ECIDED JULY 3, 2013




 Before R OVNER, W ILLIAMS, and H AMILTON, Circuit Judges.
  W ILLIAMS, Circuit Judge. Petitioner Levell Taylor (“Tay-
lor”) was convicted of murder in Illinois state court and
sentenced to 35 years’ imprisonment. In this habeas
appeal, Taylor complains that his counsel operated under
a conflict of interest by jointly representing him and his
brother, Lowell Taylor (“Lowell”), during their simulta-
neous murder trials. Taylor argues that this conflict
2                                               No. 12-2632

adversely affected his attorney’s representation because
his lawyer refused to call certain exculpatory witnesses
during Taylor’s trial, fearing they would implicate his
brother in the murder. In denying Taylor’s request
for postconviction relief, the Illinois Supreme Court
concluded that Taylor’s interests did not conflict with
his brother’s and relied upon a purported credibility
finding by the postconviction trial court to conclude
that any conflict did not adversely affect the per-
formance of Taylor’s attorney. His state-court remedies
exhausted, Taylor filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254 asserting that his trial
counsel was ineffective under Cuyler v. Sullivan, 

(1980).
  We conclude that the state court unreasonably applied
Sullivan in holding that Taylor’s interest in presenting
exculpatory witnesses did not conflict with his brother’s
interest in preventing their inculpatory testimony from
being admitted at his trial. Furthermore, the Illinois
Supreme Court unreasonably determined that the trial
court’s bare rejection of Taylor’s claim must have consti-
tuted an implicit credibility finding in Taylor’s attorney’s
favor on the question of whether the conflict of interest
actually influenced his decision to refrain from calling
Taylor’s witnesses. Because we have no factual findings
to defer to on the question of whether the conflict
of interest adversely affected Taylor’s attorney’s perfor-
mance and the evidence in the record is ambiguous,
we must remand the matter to the district court for an
evidentiary hearing to determine whether the conflict of
No. 12-2632                                             3

interest between Taylor and Lowell adversely affected
Taylor’s lawyer’s representation.


                  I. BACKGROUND
  On August 11, 1996, Bruce Carter, Keith Baker, and other
members of a gang from Chicago’s west side traveled to a
barbecue at a friend’s house on Chicago’s south side.
After Carter parked his brother’s car on the side of the
house where the barbecue was held, Carter, Baker, and
their fellow west side compatriots encountered around
13 members of a rival gang from Chicago’s south side.
The south side group included Petitioner Levell Taylor,
his brother Lowell Taylor, and Duante Anderson. It
wasn’t long before a melee arose between the two
groups in the front yard of the house. During the fracas,
Anderson punched Carter in the face and both Carter
and Baker were forced to the ground and repeatedly
kicked. Carter’s car windows were smashed. Eventually,
Carter and Baker managed to escape their assailants
and ran toward the front door of the house. Carter was
shot as he ran and later died from his wounds.
  In his initial statement to police officers who
responded to the scene, Baker identified Lowell as the
person who fired the gunshot that killed Carter. Police
officers then transported Baker and his friends to the
station for additional questioning. While being ques-
tioned at the station, Baker saw the police bring Taylor
into the station. At that point, Baker told the officer
that Taylor was the person who passed the gun to
Lowell just before the shooting. Taylor, Lowell, and
4                                             No. 12-2632

Anderson were later charged with first-degree murder
in connection with Carter’s death.
   Taylor, Lowell, and Anderson were jointly tried in
the Circuit Court of Cook County; Taylor and Anderson
were tried before the bench and Lowell before a jury.
Taylor and Lowell were both represented by criminal
defense attorney Raymond Prusak during their simulta-
neous trials. Prosecutors sought to hold Taylor liable
for Carter’s death under an accountability theory. Under
Illinois law, a person may be held to account for the
crime of another if he aids that other person in the com-
mission of the offense with the intent to facilitate the
offense’s commission. 720 ILCS § 5/5-2(c). At trial,
Baker testified that he saw Taylor hand a gun to Lowell
immediately before Lowell shot Carter. On cross-exam-
ination, Baker admitted that he had two prior felony
convictions as well as three other felony charges that
were pending at the time of his testimony. Prosecutors
also called Phillip Marshall, a member of the same gang
as Taylor, to the stand at trial. In his grand jury testi-
mony, Marshall testified that Taylor came to his house
on the night of the shooting and told him that “he just
got into it with some boys down the street and shot at
them and stuff.” But at trial Marshall recanted his grand
jury testimony. According to Marshall’s trial testimony,
police officers had threatened to charge him with Carter’s
murder unless he implicated his fellow gang members.
Marshall’s grand jury testimony was read into the
record as impeachment evidence.
  Prusak defended both of his clients by attacking
the State’s evidence and arguing that the State failed to
No. 12-2632                                              5

demonstrate guilt beyond a reasonable doubt. Taylor
and Lowell did not, however, put on any witnesses or
present any other evidence. In his closing argument for
Taylor, Prusak contended that the State’s witnesses
lacked credibility because they were convicted felons
and also because they had been impeached.
   The jury found Lowell guilty of first-degree murder.
After the jury rendered its verdict, the trial court
found Taylor guilty of first-degree murder and acquitted
Anderson. Taylor was later sentenced to 35 years’ impris-
onment. Taylor appealed his conviction claiming that
he was deprived of his right to effective assistance of
counsel due to a conflict of interest in Prusak’s joint
representation of Taylor and his brother Lowell. The
Illinois Appellate Court affirmed the judgment and
Taylor declined to file a petition for leave to appeal this
decision to the Illinois Supreme Court.
  On November 15, 2001, Taylor filed a postconviction
petition in state court and again asserted that Prusak’s
assistance was ineffective as a result of a conflict of
interest arising out of the joint representation of Taylor
and Lowell. In support of his contention, Taylor at-
tached affidavits from various witnesses which stated
that, before the start of trial, Michael Woods, Rufus
Bingham, and Teddy Plummer visited Prusak’s office
and informed him that they were at the barbecue when
Carter was murdered. In their affidavits, Woods and
Plummer asserted that they told Prusak that they saw
Lowell shoot Carter but they did not see Taylor hand
6                                                No. 12-2632

Lowell a gun.1 Woods and Plummer asserted in their
affidavits that upon receiving this information, Prusak
stated that he could not call either witness at trial be-
cause their testimony would hurt Lowell’s case.
  The postconviction trial court held an evidentiary
hearing on Taylor’s claim. Taylor’s mother, Joyce Parker,
testified that she and her husband brought Taylor,
Woods, Bingham, and Plummer to Prusak’s office in
February 1997. Parker testified that, after interviewing
the witnesses, Prusak told her that he would not use
the witnesses “because they would hurt Lowell’s case.”
  Bingham also testified that he told Prusak that he
saw Lowell shoot Carter but did not see Taylor hand
Lowell a gun. Bingham stated that Prusak told him “the
reason why he didn’t need us at the time [is] because
we would be a worser witness for Lowell.” On cross-
examination, Bingham acknowledged that he had five
prior convictions (only one of which preceded Taylor’s
trial) and that he was a member of the same gang as
Taylor. Bingham also stated that he told police that he
witnessed Lowell shoot Carter and acknowledged that
he did not mention anything about Taylor in his initial



1
  Plummer’s affidavit stated that “I saw Levell take out a gun
and fire it at the victim. His brother Levell did not hand his
brother a gun and was not involved in a any [sic] fight.”
Plummer later testified at the postconviction evidentiary
hearing that he did not recognize the typographical error in
the first sentence quoted from the affidavit before signing it
as he did not read it before signing it.
No. 12-2632                                              7

statement. Bingham stated that at the time of his ques-
tioning he was unaware that the police believed Taylor
had handed a gun to his brother before Carter’s murder.
  Other witnesses for Taylor included Plummer and
Taylor’s former co-defendant, Anderson. Plummer
testified that he informed Prusak that Taylor did not
hand a gun to his brother and that Prusak responded
that Plummer would “hurt both of his clients if [he]
testif[ied].” Plummer admitted that he had incurred
two felony convictions at the time of Taylor’s trial.
Plummer also acknowledged that he was a member of
a street gang that was friendly with Taylor’s. Plummer
told police officers that Lowell shot Carter during initial
questioning. He did not inform them that Taylor did not
hand Lowell a gun, but he testified that he did not know
at the time of his questioning that Taylor was under
arrest for the shooting or accused of handing the gun to
his brother. Anderson testified that Taylor did not
hand Lowell a gun because Taylor was on the side
of the house destroying Carter’s car at the time of the
shooting. Anderson did not speak with Prusak prior to
trial on the advice of his attorney but was presented at
the postconviction hearing to corroborate testimony
of other witnesses.
  Taylor testified on his own behalf at the postconviction
hearing. According to Taylor, Prusak told him that he
could not use his potential witnesses at trial “because
they signed statements against my brother and if they
come to court to testify on my behalf that they would
hurt my brother.” Taylor also stated that he told Prusak
8                                              No. 12-2632

that he was on the side of the house “busting out” Carter’s
windows at the time his brother shot Carter even
though he told police he was two houses away when
the incident occurred. He denied, however, telling Prusak
that he smashed Carter’s car windows using a gun. On
cross-examination, Taylor acknowledged that he did not
mention these witnesses to the Assistant State’s Attor-
ney who questioned him on the night of the murder.
  Raymond Prusak was the State’s only witness at the
postconviction evidentiary hearing. Prusak rejected the
notion that he labored under a conflict of interest in
representing Taylor and Lowell. According to Prusak,
“The trials were severed. They were going to be
separate juries or one was going to take a bench trial.
From the beginning we all knew that [Taylor] was going
to have a bench trial because we all believed that
the case against him was fairly weak.” But on cross-
examination, Prusak modified his position:
    [Taylor’s Counsel]: Why did you not have the
    same jury for both defendants?
    [Prusak]: Because they had—THEY had a need
    to be severed as far as why.
    [Taylor’s Counsel]: Why?
    [Prusak]: Because they needed separate triers of
    fact.
    [Taylor’s Counsel]: Why?
    [Prusak]: Because there was a potential there that
    a jury shouldn’t hear what Lowell had to say
    and what Levell had to say.
No. 12-2632                                                9

   [Taylor’s Counsel]: You are saying that there
   was a potential conflict?
   [Prosecutor]: Objection.
   [Prusak]: If they had—
   The Court: Overruled. You may answer.
   [Prusak]: If they had the same trier of fact it would
   have been a conflict, yes.
  Prusak acknowledged that he met with Taylor’s wit-
nesses but disputed the assertion that he rejected them
because they would hurt Lowell’s case. Prusak provided
several alternative reasons for declining to call the wit-
nesses Taylor presented. One explanation was that
the weakness of the State’s case against Taylor rendered
the additional witnesses unnecessary. In Prusak’s estima-
tion, the State’s only two witnesses tying Taylor and
Lowell to the shooting, Marshall and Baker, suffered
from credibility problems. As Prusak testified:
   So essentially there were two witnesses, one was a
   flipper, one stuck to his story but both of those
   witnesses had convictions. They were both gang
   members and they both had lied in the past and
   I felt that neither of them would be credible wit-
   nesses to support a first degree murder conviction.
  Prusak’s other rationale for refraining from calling
Taylor’s witnesses at trial was the putative witnesses’
own credibility problems. Each potential witness, Prusak
testified, had criminal convictions and would not make
a good impression on the trial court. Prusak also men-
10                                            No. 12-2632

tioned inconsistencies among the witnesses’ statements,
Taylor’s statement to police, and Taylor’s account of
events that he provided to Prusak. As an example,
Prusak testified that Taylor told him that at the time of
the shooting he was on the side of the house breaking out
Carter’s car windows with a gun. Similarly, the putative
witnesses also told Prusak that Taylor was on the scene
at the time of the shooting. However, in Taylor’s initial
statement to police, he stated that he was two houses
away at the time of shooting. Prusak stated that such
inconsistencies undermined the witnesses’ credibility and
stated that he would “be suborning perjury by putting
that evidence on.”
  Given the weakness of the State’s case and the credi-
bility issues associated with Taylor’s witnesses, Prusak
stated that calling the witnesses at trial “would just be
handing the State ammunition to lose a case” that he
believed “was weak to begin with, which I thought we
had a very good chance of winning and I didn’t want to
lose the chance of winning the case by calling witnesses
who in my opinion were not credible.”
  Prusak testified that he visited Lowell in his lock-up
after his jury began deliberations and “begged” him to
testify that Taylor did not hand him the gun used to kill
Carter. Prusak described the encounter in his testimony:
     [Prosecutor]: What was Lowell Taylor’s response?
     [Prusak]: He shook his head, mumbled no and
     walked away from me. I explained to him that his
     jury was already out. It wouldn’t have any impact
     on his case whatsoever. It may have an impact on
No. 12-2632                                                   11

    his appeal later down the road. You know, the
    appellate court might look at it and say that he,
    that he made some sort of admission. As far as his
    jury was concerned there was nothing for them to
    consider anymore. They were already deliberating.
Prusak later explained: “And if I’m begging [Taylor’s]
brother in the lockup to testify I would have gladly have
helped, taken help from anybody who would have come
off the street and testified to say a good thing about
that young man because I was trying to win his case.”
Weeks later, the postconviction trial court issued a brief
two-paragraph ruling denying the petition. The Illinois
Appellate Court subsequently affirmed the denial of
the petition.
   During the pendency of the appeal, the Illinois Attorney
Registration and Disciplinary Commission (“ARDC”)
filed a complaint against Prusak charging him with
improperly representing another set of co-defendants
while operating under a conflict of interest. In re Raymond
L. Prusak, 06 CH 0066, available at http://www.iardc.org
(last visited June 24, 2013).2 Eventually, the Illinois Su-



2
   According to the ARDC complaint, Prusak cross-examined
an eyewitness to an armed robbery so as to solidify her identifi-
cation of one of his clients, Corian White, while undermining
her identification of his other client, Tracy Chambers. As the
Illinois Appellate Court noted in its opinion reversing White’s
conviction regarding Prusak’s cross-examination, “[t]he prosecu-
tion could not have done a better job of eliciting facts that
                                                   (continued...)
12                                              No. 12-2632

preme Court suspended Prusak from the practice of law
pending his compliance with certain conditions in-
cluding securing an experienced defense attorney
mentor to supervise Prusak’s handling of criminal cases.
In re: Raymond L. Prusak, Ill. Sup. Ct., M.R. 22666 (eff.
December 9, 2008), available at http://www.iardc.org
(last visited June 24, 2013). As of June 24, 2013, Prusak
remains unauthorized to practice law due to discipline.
Illinois Attorney Registration & Disciplinary Commis-
sion of the Supreme Court of Illinois, L AWYER S EARCH,
http://www.iardc.org/lawyersearch.asp. Taylor cited the
ARDC complaint in his petition for leave to appeal to the
Illinois Supreme Court, which was granted on January 28,
2009.
  The Illinois Supreme Court affirmed the denial of Tay-
lor’s postconviction petition. People v. Taylor, 

(2010). The court applied the framework described
in Cuyler v. Sullivan, 

(1980), for evaluating
purported violations of the Sixth Amendment arising out
of conflicts of interest that were not raised at trial. The
court quoted the Sullivan decision in holding that
“[w]here, as here, a potential conflict of interest is not
brought to the attention of the trial court, ‘a defendant
must establish that an actual conflict of interest adversely
affected his lawyer’s performance.’ ” Taylor, 930 N.E.2d



(...continued)
supported her identification of defendant White, counsel’s
own client.” People v. White, 

, 192 (Ill. App.
Ct. 2005).
No. 12-2632                                                 13

at 971. In other words, the Illinois Supreme Court said, “a
defendant must show that an actual conflict of interest
manifested at trial. What this means is that the
defendant must point to some specific defect in his coun-
sel’s strategy tactics, or decision making attributable to
the conflict.” 

(citations and internal quota-
tion marks omitted).
  Using this analysis, the court found that Taylor “failed
to establish an actual conflict of interest in the joint repre-
sentation of himself and Lowell that adversely affected
Prusak’s performance at trial.” 

After noting
that “the only alleged specific defect in Prusak’s represen-
tation that [Taylor] attributes to the claimed conflict is
that Prusak failed to call [Taylor]’s proffered witnesses,”
the court found that these witnesses “merely raised the
possibility that the interests of [Taylor] and Lowell may
diverge.” 

Put another way, “[t]he mere avail-
ability of a strategy that would have helped one
criminal codefendant at the expense of another does not
create hostility between their interests.” 

also found that Taylor failed to establish
an adverse effect on Prusak’s performance. In rendering
its holding, the court acknowledged the contradictory
nature of the evidence presented by both sides “as to
whether Prusak’s decision not to call defendant’s
proffered witnesses was attributable to the alleged con-
flict of interest.” 

Because resolving this conflict
“rested substantially on the credibility of the witnesses
at the evidentiary hearing[,]” the court relied on the
purported judgment of the circuit court which “evidently
14                                             No. 12-2632

found Prusak’s testimony more credible.” 

the circuit court’s alleged credibility determination, the
Illinois Supreme Court relied on discrepancies among
the testimony of Taylor and his purported witnesses. 

   Taylor then filed a petition for federal habeas relief
based upon Prusak’s alleged conflict of interest. The
district court denied the petition and concluded that the
Illinois Supreme Court’s decision was not contrary to, and
did not involve an unreasonable application of, Sullivan.
In rejecting Taylor’s claim, the district court found that
the Illinois Supreme Court had not unreasonably con-
cluded that any conflict of interest in Prusak’s joint rep-
resentation did not affect his performance at Taylor’s
bench trial.
  After denying the petition, the district court issued a
certificate of appealability on the central question
which we must now resolve: “[w]hether trial counsel’s
joint representation of Petitioner Levell Taylor and his
co-defendant/brother, Lowell Taylor, violated Petitioner’s
constitutional right to the effective assistance of counsel
under the Sixth and Fourteenth Amendments to the
United States Constitution.”


                     II. ANALYSIS
  Our assessment of Taylor’s claim is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254. Where, as here, a state court
decides a constitutional claim on the merits, AEDPA
No. 12-2632                                              15

provides that a writ of habeas corpus will not issue
unless the state-court adjudication “resulted in a deci-
sion that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States” or
“resulted in a decision that was based on an
unreasonable determination of the facts” in light of the
evidence before the state court. 28 U.S.C. § 2254(d)(1)-(2).
“When a state collateral review system issues multiple
decisions, we typically consider the last reasoned opinion
on the claim”—in this case, the opinion of the Illinois
Supreme Court. Woolley v. Rednour, 

, 421
(7th Cir. 2012) (internal quotation marks omitted).
  The standard described in § 2254(d)(1) is a strict
one. “[A]n unreasonable application of federal law is
different from an incorrect application of federal law.”
Williams v. Taylor, 

, 410 (2000) (emphasis in
original). To establish his entitlement to habeas relief,
Taylor “must show that the state court’s ruling on the
claim . . . was so lacking in justification that there was
an error well understood and comprehended in existing
law beyond any possibility for fairminded disagree-
ment.” Harrington v. Richter, 

, 786-87 (2011).
In evaluating the Illinois courts’ analysis of Taylor’s
claim under section 2254(d)(1), we presume that the
courts’ factual determinations are correct unless Taylor
rebuts the presumption by clear and convincing evi-
dence. 28 U.S.C. § 2254(e)(1). “The standard is demanding
but not insatiable . . . deference does not by definition
preclude relief.” Miller-El v. Dretke, 

, 240
(2005) (quoting Miller-El v. Cockrell, 

(2003)).
16                                               No. 12-2632

  Courts employ a standard similar to § 2254(e)(1) to
evaluate whether a state court decision rested upon
an unreasonable determination of the facts. “Under
§ 2254(d)(2), a decision involves an unreasonable deter-
mination of the facts if it rests upon fact-finding
that ignores the clear and convincing weight of the evi-
dence.” Goudy v. Basinger, 

, 399-400 (7th Cir.
2010) (citing Ward v. Sternes, 

(7th Cir. 2003)).
  Taylor’s principal contention is that the Illinois
Supreme Court unreasonably applied federal law and
unreasonably determined the facts in light of the evi-
dence in rejecting his claim that he was deprived of his
Sixth and Fourteenth Amendment rights to effective
assistance of counsel because his attorney labored under
a conflict of interest. See U.S. Const. amend. VI, XIV.
  Taylor’s Sixth Amendment conflict-of-interest claim is
governed by the framework described in Cuyler v.
Sullivan, 

(1980), and related cases. In
Sullivan, the Supreme Court held that a defendant who
raised no conflict of interest objection at trial must demon-
strate that (1) the defendant’s interests conflicted with
those of a codefendant represented by the same at-
torney; and (2) the conflict “adversely affected his
lawyer’s performance.” 

see also Mickens v.
Taylor, 

, 171 (2002) (“[W]e think ‘an actual
conflict of interest’ meant precisely a conflict that affected
counsel’s performance—as opposed to a mere theoretical
division of loyalties”). Put another way, the defendant
must show that his attorney was influenced by the
conflict in making “basic strategic decisions” in a manner
No. 12-2632                                               17

adverse to the defendant. See Wood v. Georgia, 

,
272 (1981). Unlike other forms of ineffective assistance
claims, “a defendant who shows that a conflict of interest
actually affected the adequacy of his representation need
not demonstrate prejudice in order to obtain relief.”

.
  Although the Illinois Supreme Court correctly identified
the Sullivan analysis as the standard governing Taylor’s
claim, 

, Taylor contends that
the court unreasonably applied Sullivan and other
Supreme Court case law in holding that his Sixth Amend-
ment rights were not violated.


  A. The Illinois Supreme Court Unreasonably
     Applied Sullivan in Concluding that Taylor’s
     Interests Did Not Conflict with Lowell’s Interests
  Taylor contends that the Illinois Supreme Court unrea-
sonably applied federal law in finding that Taylor’s
interests did not conflict with Lowell’s interests with
respect to the selection of a defense at trial. In concluding
that no such conflict existed, the Illinois Supreme Court
unreasonably equated Prusak’s common defense strategy
with the absence of antagonism between the brothers’
interests. The court noted that both Taylor and his brother
denied their guilt, did not implicate the other person at
trial, and that their attorney “vigorously cross-examined
the State’s witnesses, impeached their credibility, and
argued that the State failed to meet its burden of proof
beyond a reasonable doubt.” 

.
With respect to Taylor’s potential defense based upon his
18                                              No. 12-2632

proffered witnesses, the court found that “[a]t most,
defendant’s proffered witnesses merely raised the possi-
bility that the interests of [Taylor] and Lowell may di-
verge. . . The mere availability of a strategy that
would have helped one criminal codefendant at the
expense of another does not create hostility between
their interests.” 

original).
  In analyzing this aspect of Taylor’s claim, the Illinois
Supreme Court failed to recognize that a common
defense for two clients does not necessarily demonstrate
the absence of a conflict between their interests. To be
sure, the Supreme Court has recognized that the
interests of two or more defendants can be served by
their shared attorney’s pursuit of a single defense strategy.
Holloway v. Arkansas, 

, 482-83 (1978) (“ ‘A
common defense often gives strength against a common
attack’ ” (quoting Glasser v. United States, 

, 92
(1942) (Frankfurter, J. dissenting))). But this is not always
the case. The presentation of a united front may not
be consistent with one defendant’s interest if it requires
the abandonment of a plausible defense that benefits him
at the expense of his codefendant. See 

(remanding for consideration of whether peti-
tioner’s counsel labored under conflict of interest when
deciding against presenting defense in order to protect
codefendants’ interests); see also Glasser v. United States,

, 72-73, 75-76 (1942) (finding defendant denied
effective assistance when his attorney declined to cross-
examine government witness for fear of prejudice to
codefendant).
No. 12-2632                                                   19

  In order to determine whether the brothers’ interests
were both served by the pursuit of a common defense, the
court must evaluate the strength of the putative defense
discarded by his attorney and whether its presentation
would harm the interests of a codefendant represented
by the same attorney. See 

(“[I]n a
case of joint representation of conflicting interests the evilit
bears repeating—is in what the advocate finds himself
compelled to refrain from doing. . . .”). Specifically, the
court must determine whether the defense presented a
plausible alternative to the strategy actually pursued at
trial. See, e.g., Griffin v. McVicar, 

, 887 (7th Cir.
1996) (“The test for conflict between defendants is not
whether the defenses actually chosen by them are consis-
tent but whether in making the choice of defenses the
interests of the defendants were in conflict” (quoting
United States ex rel. Gray v. Director, Dept. of Corrections, 

, 597 (7th Cir. 1983))). The abandoned defense need
not be a winning one; to suggest otherwise would run
contrary to the Supreme Court’s prohibition against
“indulg[ing] in nice calculations as to the amount of
prejudice attributable to the conflict” when evaluating
conflict of interest claims. 

(internal quotation marks omitted). Without an assessment
of the discarded defense and its relationship to his
brother’s interests, the court could not determine
whether or not Taylor’s interests were at odds with
Lowell’s in the context of choosing a defense to pursue
at trial.
  The Illinois Supreme Court unreasonably declined to
perform any analysis of Taylor’s potential defense in
20                                             No. 12-2632

assessing his Sixth Amendment claim. If it had, the court
would have arrived at the inescapable conclusion that
Taylor’s potential strategy was sufficiently plausible
such that his interests were at odds with those of his
brother in deciding whether to pursue a unified assault on
the State’s evidence. Undisputed evidence at the
postconviction evidentiary hearing revealed that three
eyewitnesses to the fight, Bingham, Plummer, and Woods,
met with Prusak. Each witness told Prusak that they
would testify that they saw Lowell shoot Carter but did
not see Taylor hand Lowell a gun. These witnesses would
have refuted the State’s only evidence connecting Taylor
to the crime by contradicting testimony that Taylor pro-
vided his brother with the murder weapon.
  Furthermore, Taylor’s interest in presenting his exculpa-
tory witnesses was directly at odds with his brother’s
interest in excluding their testimony. Undisputed evidence
demonstrates that each of Taylor’s putative witnesses
would have testified that they witnessed Lowell fire
the shot that killed Carter. As Prusak was aware, two of
the witnesses, Bingham and Plummer, had spoken to
police during their initial investigation and, consistent
with their proffered testimony, had told the authorities
that Lowell shot Carter. These prior consistent statements
to police identifying Lowell as the shooter only enhanced
the danger that their testimony posed to Lowell. Although
the potential prejudice to Lowell may have been slightly
lessened by the fact that he and his brother had simulta-
neous trials before separate triers of fact, 

, this procedural maneuver did not eliminate
the potential harm. Any witness that Taylor called in his
No. 12-2632                                             21

proceeding would have been made available instantly to
the prosecution for use in Lowell’s trial. Indeed, the
Supreme Court in Sullivan recognized that such a sever-
ance does not automatically cure a conflict of interest
between codefendants. 

350 (remanding for
consideration of conflict when defendant’s attorney
testified that he did not put on witnesses “because I
thought we would only be exposing the [defense] wit-
nesses for the other two trials that were coming up”).
    Prusak himself conceded that the brothers had
divergent interests with regard to their defenses. When
asked why he felt the need to have his clients tried before
separate finders of fact, Prusak responded that the proce-
dural maneuver was necessary “[b]ecause there was a
potential there that a jury shouldn’t hear what Lowell
had to say and what Levell had to say.” Prusak’s justifica-
tion demonstrates his recognition that any attempt to
exonerate Taylor through testimonial evidence would
necessarily harm Lowell’s interests.
   By failing to consider the strength of Taylor’s defense
and its relationship to Lowell’s interests, the Illinois
Supreme Court unreasonably applied Supreme Court
precedent requiring examination of the proverbial road not
taken to determine whether a conflict of interest existed
between codefendants with shared representation. Hollo-

(“Joint representation of con-
flicting interests is suspect because of what it tends to
prevent the attorney from doing”). The brothers’ interests
clearly were at odds because Taylor’s witnesses constituted
a potentially successful defense strategy for Taylor but
22                                               No. 12-2632

posed a significant threat to Lowell’s case at trial. In
concluding that Taylor’s interests were harmonious with
Lowell’s, the Illinois Supreme Court reached a conclusion
that “was so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”

.


  B. Illinois Supreme Court’s Adverse Effect Decision
     Was Based on an Unreasonable Determination of
     the Facts
  Even though Taylor’s interests were contrary to those of
his brother Lowell, because Taylor did not register a
conflict-based objection at trial he must show that “an
actual conflict of interest adversely affected his lawyer’s
performance” in order to establish a Sixth Amendment
violation. 

. In other words, Sullivan
requires Taylor to show that Prusak’s refusal to call his
witnesses was in fact caused by a desire to protect Lowell’s
interests. See Burger v. Kemp, 

, 784-85 (1987).
  Taylor contends that the Illinois Supreme Court’s
conclusion that the conflict of interest between Taylor and
Lowell did not adversely affect Prusak’s performance “was
based on an unreasonable determination of the facts in
light of the evidence” in that it ignored the clear and
convincing weight of the evidence before the court. 28
U.S.C. § 2254(d)(2); 

.
  The Illinois Supreme Court concluded that Taylor could
not show an adverse effect on Prusak’s representation
No. 12-2632                                               23

because the decision to refrain from calling Taylor’s
witnesses was based upon strategic considerations unre-
lated to the conflict of interest between Taylor and
Lowell. 

-74. The Illinois Supreme
Court concluded that Prusak decided against presenting
Taylor’s witnesses because, “in his professional judg-
ment, they were weak witnesses,” and because he
thought that Taylor would be better served by simply
attacking the sufficiency of the State’s evidence. 

rationale did not implicate the com-
peting interests of the two brothers, the court held that
Taylor could not establish a violation of his Sixth Amend-
ment rights. 

   In evaluating this part of Taylor’s claim, the Illinois
Supreme Court relied upon the postconviction trial
court’s purported implicit factual finding that Prusak
rejected the three witnesses for strategic reasons
unrelated to the conflict of interest between Taylor and
Lowell. 

The court acknowledged that the
postconviction trial court made no explicit factual
finding but noted that the conflict of interest inquiry
requires a factual determination “of specific defects in the
representation” such that “the circuit court necessarily had
to base its ruling on the specific circumstances of this
case[.]” 

Here, “the testimony at the evidentiary
hearing was contradictory, setting up a question of fact
as to whether Prusak’s decision not to call defendant’s
proffered witnesses was attributable to the alleged con-
flict of interest.” 

Given that resolution of this
issue “rested substantially on the credibility of the wi-
tnesses at the evidentiary hearing[,]” the court concluded
24                                              No. 12-2632

that “the circuit court evidently found Prusak’s testimony
more credible” and rejected Taylor’s Sixth Amendment
claim based solely on this credibility finding. 

the Illinois Supreme Court’s finding
that the postconviction trial court made an implicit credi-
bility determination accepting Prusak’s explanation for
his refusal to present Taylor’s witnesses. For purposes
of collateral review, we must defer to the Illinois
Supreme Court’s characterization of what the post-
conviction trial court found unless the petitioner presents
clear and convincing evidence to overcome that presump-
tion. 28 U.S.C. § 2254(e)(1); Parker v. Dugger, 

,
320 (1991) (holding that a state appellate court’s “deter-
mination of what the trial judge found is an issue of
historical fact” entitled to appropriate deference under
§ 2254); Wright v. Walls, 

, 944 (7th Cir. 2002)
(“[A] reviewing court’s characterization of what the
trial judge found is one of historical fact”).
  The postconviction trial court’s decision rejecting Tay-
lor’s claim was exceedingly brief:
     This case is up for a ruling. It’s been continued
     about thirty some times, and I have reviewed the
     transcripts on several occasions, the Appellate
     opinion, the motion presented by the attorneys. We
     also had a hearing where Mr. Prusak testified, and
     I considered all that in determining whether or
     not the petition has any merit.
     After considering all the evidence, the testimony,
     and the arguments of the lawyers, this Court, it is
No. 12-2632                                              25

    the Court’s opinion that Mr. Taylor did not re-
    ceive any substantial deviation of his constitu-
    tional rights, and therefore the PC petition is
    hereby denied.
  The trial court’s two-paragraph-long oral decision
presents no indication of an implicit credibility finding.
The ruling contains no mention of the word “credibility”
nor includes any language suggesting a comparison of
the believability of either side’s account of the facts sur-
rounding Prusak’s representation of Taylor. The trial
court cites no facts and does not describe the legal princi-
ples it applied in rejecting Taylor’s claim. Although the
court mentions that it held a hearing in which Prusak
testified, this reference appears only in the context of the
trial judge’s description of the types of evidence he con-
sidered. Standing alone, such a sparse decision devoid
of factual matter cannot support the Illinois Supreme
Court’s determination of an implicit credibility finding.
  Moreover, the Illinois Supreme Court unreasonably
assumed that the trial court necessarily found that Prusak
testified credibly when it rejected Taylor’s claim. Recall
that in order to establish a violation of his Sixth Amend-
ment rights under Sullivan, Taylor had to show: (1) his
interests and those of his brother were in conflict; and
(2) the conflict adversely affected Prusak’s performance.

. Under these circumstances, a
rejection of a Sullivan claim can mean one of three things:
(1) a petitioner has not shown that his interests diverged
from those of a codefendant represented by the same
attorney; (2) a petitioner cannot demonstrate an adverse
26                                                No. 12-2632

effect regardless of whether a conflict existed; or (3) a
petitioner has shown a conflict of interest but his claim
still fails because he cannot demonstrate an adverse
effect. A mere denial of a Sullivan claim, without some
indication of the grounds upon which it is based, cannot
support an inference that the court relied solely upon
a lack of adverse effect.
  The arguments of the parties at the evidentiary hearing
also demonstrate the problematic nature of the Illinois
Supreme Court’s assumption. Although the Illinois Su-
preme Court believed that the dispute before the
postconviction trial court solely revolved around the
“adverse effect” portion of the Sullivan inquiry, this was
not the only contested issue at the hearing. The parties also
presented conflicting evidence and argument concerning
whether the respective interests of the brothers were at
odds. Given the two-pronged nature of the Sullivan
test and that the parties contested both the threshold
conflict of interest condition and the “adverse effect”
dependent necessary condition, the trial court’s unadorned
denial of the claim cannot support an implied factual
finding on the “adverse effect” issue. Under the circum-
stances, we conclude that the Illinois Supreme Court
incorrectly found that the trial court made a credibility
finding in concluding that Prusak’s representation was
not adversely affected by the conflict of interest between
Taylor and Lowell.3



3
  This case presents an entirely different set of circumstances
than that confronting the Supreme Court in La Vallee v. Delle
                                                 (continued...)
No. 12-2632                                                       27




(...continued)
Rose, 

(1973) (per curiam). In that case, the state trial
court conducted an evidentiary hearing regarding the voluntari-
ness of a defendant’s confessions and after an “extensive[]
summar[y]” of the conflicting evidence concluded, “that the
respective confessions to the police and district attorney were,
in all respects, voluntary[.]” 

The Second Circuit
granted habeas relief because the state court failed to make a
credibility finding without which “it could not tell whether the
state courts credited [petitioner’s story of coercive methods
used to obtain his statements] but still held these to have been
voluntary, a conclusion to which we would not agree,” or
permissibly credited evidence to the contrary and found the
confession to be voluntary. 

The Supreme Court
reversed, concluding that “it can scarcely be doubted from its
written opinion that respondent’s factual contentions were
resolved against him.” 

The Court reminded federal
habeas courts that they are to presume “that the state trier of
fact applied correct standards of federal law to the facts” and
could not mistake silence for legal error. 

  Unlike here, the claim in Delle Rose concerned one discrete
issue: whether the statements were given voluntarily or not.
When competing testimony is presented on a single issue
decided in the government’s favor, a federal habeas court
can imply a credibility finding in favor of the government from
the state court’s decision. Here, however, the resolution of
Taylor’s claim required resolution of two issues that were
both contested at the trial court level. In addition, we are not
concerned with whether the postconviction court applied the
incorrect standard in resolving Taylor’s claim; we simply
cannot discern the part of the proper framework upon which
the court based its ruling. Moreover, the state trial court in
                                                      (continued...)
28                                                  No. 12-2632

   Nor can we accept the alternative contention that the
Illinois Supreme Court made an appellate credibility
finding in Prusak’s favor. A federal habeas court must
accord deference to findings of fact made by state appellate
courts. See Sumner v. Mata, 

, 545-46 (1981);
Miranda v. Leibach, 

, 999-1000 (7th Cir. 2005).
But in this case the Illinois Supreme Court expressly
disclaimed making any credibility finding and instead
relied on a purported implicit credibility finding by the
postconviction trial court. As the Illinois Supreme
Court stated in its opinion,"[c]redibility is not, of itself, a
question for a court of review . . . [r]ather, in a
postconviction evidentiary hearing, the circuit court,
which saw and heard the witnesses, is in a better position
than a reviewing court to engage in fact-finding and
credibility determinations.” 

(internal quotation marks and citations omitted). Pursuant
to this analytical framework, the Illinois Supreme Court
refrained from making its own credibility findings and
limited its review to the postconviction trial court’s
decision. See 

circuit court’s credibility
determination is particularly justified. . . .”). Furthermore,
the fact that the Illinois Supreme Court rejected Taylor’s
invitation to perform de novo review of the facts lends



(...continued)
Delle Rose provided a lengthy discussion of the relevant evi-
dence and explained the legal ground on which it based its
decision to alleviate any doubt as to the basis for its decision.
The postconviction trial court’s decision contains no
such discussion.
No. 12-2632                                              29

additional support to our conclusion. 

Instead,
the court performed manifest error review of the trial
court’s decision, a standard that requires the reviewing
court to refrain from “substitut[ing] its judgment for that
of the trial court regarding the credibility of witnesses.”
People v. Deleon, 

, 1005 (Ill. 2008); see also
Wrinkles v. Buss, 

, 818 (7th Cir. 2008) (finding
that Indiana Supreme Court made no factual finding
when the court declined to “say it was engaging in a
de novo re-weighing of the evidence”). Under the circum-
stances, we are convinced that the Illinois Supreme Court
did not make an appellate credibility finding on the
question of Prusak’s motivation for refusing to call
Taylor’s witnesses.
  In light of the above, we conclude that the Illinois
Supreme Court’s decision on the adverse effect question,
as it was based solely on a non-existent credibility
finding by the postconviction trial court, was based on an
unreasonable determination of the facts in light of the
record. 28 U.S.C. § 2254(d)(2). The Illinois Supreme
Court had no factual findings before it that would
support its conclusion that Prusak’s performance did not
suffer as a result of the conflict of interest between
Taylor and Lowell. Furthermore, the Illinois Supreme
Court did not perform an independent evaluation of the
evidence. We therefore find that the Illinois Supreme
Court’s determination was not supported by the clear
and convincing weight of the evidence before it. See

.
30                                                No. 12-2632

  C. District Court Must Determine Whether Conflict of
     Interest Adversely Affected Prusak’s Performance
  Even though the Illinois Supreme Court’s decision
unreasonably applied Supreme Court law in finding no
conflict of interest and rested its adverse effect analysis
upon an unreasonable factual determination, the ques-
tion of whether Prusak’s performance was adversely
affected by the conflict remains unresolved. Despite
holding an evidentiary hearing, the Illinois postconvic-
tion trial court refrained from making any findings of
fact on the adverse effect question that would provide a
basis for deference. This factual void then found its way
into the Illinois Supreme Court’s opinion. Without such
a finding, we are left with an ambiguous record that
precludes our independent determination of this pivotal
question. In these circumstances, we simply cannot be
certain whether or not Taylor is “in custody in violation
of the Constitution or laws or treaties of the United
States” and therefore entitled to habeas relief. 28 U.S.C.
§ 2254(a).
  So we must remand this case to the district court for an
evidentiary hearing on whether the conflict of interest
between the two brothers adversely affected Prusak’s
performance. “A state court’s mistake in summarily
rejecting a petition, i.e., without fully evaluating
conflicting evidence on disputed factual issues, does not
necessarily mean the petition is ultimately entitled to
relief.” Mosley v. Atchison, 

, 842 (7th Cir. 2012).
Instead, we must remand “in situations like these
because the state court did not make a critical factual
No. 12-2632                                                  31

finding to which we may defer.” Stitts v. Wilson, 

, 895-96 (7th Cir. 2013).
  Such a result is consistent with the Supreme Court’s
decision in Cullen v. Pinholster, 

(2011), which
held that “review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the
claim on the merits.” 

Indeed, Justice Breyer
recognized that an evidentiary hearing would be neces-
sary in a circumstance similar to that present in this case:
    [I]f the state-court rejection rested on only one of
    several related federal grounds (e.g., that counsel’s
    assistance was not “inadequate”), then, if the
    federal court found that the state court’s decision
    in respect to the ground it decided violated (d), an
    (e) hearing might be needed to consider other
    related parts of the whole constitutional claim (e.g.,
    whether the counsel’s “inadequate” assistance
    was also prejudicial).

(Breyer, J., concurring in part and dissenting in
part).
   On remand, the district court should conduct an evi-
dentiary hearing to determine whether the conflict of
interest adversely affected Prusak’s representation of
Taylor such that Taylor’s Sixth Amendment right to
counsel was violated. If the evidence shows that Prusak
refrained from presenting Taylor’s witnesses for fear that
the State would call them at Lowell’s jury trial, then
Prusak would have labored under an actual conflict of
interest in violation of Taylor’s Sixth Amendment rights.
If, however, Prusak made this decision based upon his
32                                          No. 12-2632

evaluation of the witnesses’ credibility and their value
to Taylor’s case and without regard to their potential
harm to Lowell’s interests, no constitutional violation
would have occurred.


                  III. CONCLUSION
  For the above-stated reasons, we R EVERSE the district
court’s denial of Taylor’s petition and R EMAND for
further proceedings consistent with opinion.




                         7-3-13