PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TERESA ANN WILSON,
Petitioner-Appellant,

v.

MICHAEL MOORE, Commissioner of
                                                                     No. 98-6577
South Carolina Department of
Corrections; CHARLES MOLONY
CONDON, Attorney General of the
State of South Carolina,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Henry M. Herlong, Jr., District Judge.
(CA-97-1040-2-20AJ)

Argued: January 28, 1999

Decided: May 25, 1999

Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge,
and GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Traxler wrote the opinion, in
which Chief Judge Wilkinson and Judge Goodwin joined.

_________________________________________________________________

COUNSEL

ARGUED: David Isaac Bruck, Columbia, South Carolina, for Appel-
lant. Robert Eugene Bogan, Assistant Attorney General, Columbia,
South Carolina, for Appellees. ON BRIEF: Charles M. Condon,
Attorney General, John W. McIntosh, Deputy Attorney General, Don-
ald J. Zelenka, Assistant Deputy Attorney General, Columbia, South
Carolina, for Appellees.

_________________________________________________________________

OPINION

TRAXLER, Circuit Judge:

Appellant Teresa Ann Wilson ("Teresa") applied under 28
U.S.C.A. § 2254 (West 1994 & Supp. 1998) for relief from two drug
conspiracy convictions in South Carolina state court, asserting that
her Sixth Amendment right to counsel was abridged when one lawyer
jointly represented her and her husband, and that she did not know-
ingly waive her right to be represented separately by her own attor-
ney. In rejecting Teresa's arguments, the district court declined to
consider belated evidence that she had been suffering the effects of
domestic abuse at the time of her prosecution. This evidence, which
Teresa contends would show her inability to participate independently
in her own defense, was not presented to the state courts during post-
conviction relief (PCR) proceedings; however, while her federal
habeas application was pending, Teresa included this evidence in a
petition for a writ of habeas corpus to the Supreme Court of South
Carolina, which denied her petition without explanation in a one-
sentence order.

The district court concluded that the South Carolina Supreme Court
had disposed of Teresa's habeas petition on state procedural grounds
and, therefore, had not considered the evidence. As a result, the dis-
trict court also refused to consider it, taking into account only the evi-
dence that had been before the state PCR court. Ultimately, the
district court rejected Teresa's § 2254 application and granted sum-
mary judgment to the State.1 On appeal, Teresa urges us to find that
_________________________________________________________________
1 The § 2254 application named as respondents Michael Moore, Com-
missioner, South Carolina Department of Corrections, and Charles M.
Condon, Attorney General for the State of South Carolina. For ease of
reference, we refer to respondents as "the State."

                    2
the South Carolina Supreme Court actually considered this evidence
and disposed of her petition on the merits, and she suggests that the
appropriate remedy is to return the matter to district court for recon-
sideration of her claims in light of this evidence.

We hold that the South Carolina Supreme Court rejected Teresa's
habeas petition on state procedural grounds and, therefore, did not
take into account Teresa's evidence of spousal abuse. Thus, in ruling
on her claims for relief under § 2254, the district court properly
refused to consider the new evidence. We conclude further that the
district court correctly determined that Teresa's claims were without
merit. Accordingly, we affirm.

I.

Teresa and her husband Ronnie Wilson ("Ronnie") were indicted
in South Carolina state court on two counts of conspiring to traffic
cocaine and marijuana and one substantive trafficking count. They
retained a single attorney to represent them at their joint trial. At a
pretrial hearing, the trial judge detailed at length the perils of joint
representation, and specifically explained the difficulties that could
arise when an attorney representing co-defendants attempted to plea
bargain.2 In fact, the trial judge urged the Wilsons to retain separate
_________________________________________________________________
2 The trial judge read to the Wilsons from a standard waiver form
which provided, in part, the following:

          [W]hen one lawyer represents two or more defendants in any
          case, a lawyer may not be able to represent all of the defendants
          to the fullest extent of the law. This may create a conflict of
          interest which could deny one of the defendants the right to
          effective assistance of counsel. Each defendant has the right to
          have a lawyer who represents him and only him. And as you
          know, if you can't afford a lawyer, I will appoint one for you.

          ....

          This kind of conflict of interest can be dangerous to a defendant
          in a number of ways. The government might let a defendant who
          is not as involved as other defendants plead guilty to lesser
          charges than their other defendants.

J.A. 13-14.

                    3
counsel. Nevertheless, Teresa waived her right to separate counsel
orally and in writing by signing a waiver form. 3

Following a jury trial, the Wilsons were convicted on all three
counts and sentenced to identical prison terms of twenty-five years.
On direct review, the South Carolina Supreme Court affirmed the
Wilsons' conspiracy convictions but vacated their substantive traf-
_________________________________________________________________

The judge then elaborated on the problems presented by plea negotia-
tions:

           [I]f you have a lawyer who represents more than one defendant,
           suppose the [State has] offered one of the defendants to enter a
           plea to a lesser offense or to work out some kind of real good
           deal with them in exchange for testimony.

           If you have got one lawyer representing two or more people, that
           lawyer may try to persuade that defendant not to plead guilty in
           order to protect ... the other person that that lawyer represents....
           He might recommend that ... the deal is good, you go ahead and
           take it ... know[ing] then that that person is going to be testifying
           against his other client that he has got remaining.

J.A. 14.

3 Following the trial court's lengthy comments on the dangers of joint
representation, both Teresa and Ronnie indicated their assent:

           THE COURT: What about you, Mr. Wilson, what are your --

           MR. WILSON: I -- we -- I will go ahead -- That's fine with
           me.

           THE COURT: Both of you want to keep the same--

           MR. WILSON: Yes, sir.

           THE COURT: -- the same lawyer?

           MS. WILSON: (Nods head in the affirmative).

           ....

           THE COURT: . . . And, Ms. Wilson, I didn't ask you, but you
           concur with that?

           MS. WILSON: Yes, sir.

J.A. 19-20.

                     4
ficking convictions because of a jurisdictional infirmity. See State v.
Wilson, 

(S.C. 1993).

Teresa then sought post-conviction relief (PCR) in South Carolina
Circuit Court. See S.C. Code Ann. §§ 17-27-10 to -160 (Law. Co-op.
1985 & Supp. 1998). Primarily, Teresa contended that she was denied
her Sixth Amendment right to effective assistance of counsel because
her attorney represented both her and Ronnie even though they had
disparate legal interests, and that she did not effectively waive her
right to separate counsel because the nature of the potential conflict
of interest was not adequately explained to her. 4 Teresa never sug-
gested to the PCR court, however, that she was unable to knowingly
waive her right to separate counsel because of chronic abuse,5 i.e.,
Battered Woman Syndrome (BWS). Subsequently, the PCR court
entered a written order denying post-conviction relief. The PCR judge
rejected her Sixth Amendment claims, concluding that Teresa had
been adequately informed of the problems intrinsic to joint represen-
tation but that she had waived her right to separate counsel. Teresa
sought review of the PCR court's order of dismissal, but the South
Carolina Supreme Court denied Teresa's petition for certiorari.

In April 1997, after obtaining new counsel, Teresa filed a § 2254
application in the district court.6 She advanced two grounds for fed-
_________________________________________________________________

4 Additionally, Teresa argued to the PCR court that her counsel was
ineffective for failing to adequately investigate possible defenses, and
that she was unlawfully sentenced. She does not press these additional
claims before us, however.
5 During an evidentiary hearing conducted by the PCR court, Teresa
testified that she suffered physical abuse by Ronnie, and her PCR coun-
sel argued that the fact that she was a battered spouse "could have been
explored in her defense had she had another attorney." J.A. 78. However,
she did not suggest to the PCR court that the alleged domestic abuse ren-
dered her unable to voluntarily waive a conflict of interest.

6 Because Teresa's § 2254 application was filed after the April 24,
1996 enactment of the Antiterrorism and Effective Death Penalty Act
(AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, the amendments
to 28 U.S.C.A. § 2254 effected by the AEDPA apply. See Lindh v.
Murphy, 

(1997); Green v. French , 

, 868 (4th
Cir. 1998), cert. denied, 

(1999).

                    5
eral habeas relief. First, she contended that she was denied effective
assistance of counsel under the Sixth and Fourteenth Amendments
because her attorney was hampered by a conflict of interest between
Teresa and Ronnie. Teresa claimed that she played a minimal role in
Ronnie's drug activities. Because of this perceived gap in culpability
between her and Ronnie, Teresa argued that her attorney could not
provide adequate joint representation. As a specific example of this
alleged conflict of interest, Teresa highlighted a plea offer that the
prosecutor extended to Teresa alone in exchange for her testimony.
She believes that competent counsel would have recognized that her
best interests conflicted with Ronnie's and thus would have advised
her to obtain separate counsel. Teresa's second§ 2254 claim was that
she did not knowingly and voluntarily waive her right to separate
counsel because she was suffering the effects of BWS and was unable
to assess independently whether it would serve her best interests to
retain her own attorney.

In support of her § 2254 application, particularly her second ground
for relief, Teresa presented -- for the first time-- several affidavits
attesting to the abuse she allegedly suffered at Ronnie's hands and a
psychological report concluding that Teresa suffered from BWS
before and during the trial. Thus, Teresa's § 2254 application rested
in part on factual allegations that were never presented to the PCR
court. It is undisputed that this newly presented evidence was avail-
able and could have been developed at the time Teresa filed her PCR
application.

Teresa's § 2254 application was referred to a magistrate judge for
a recommendation to the district court. After the State moved for
summary judgment, the magistrate judge directed the parties to brief
the issue of whether the newly submitted affidavits and psychological
report could be considered. Before the magistrate judge issued a rec-
ommendation, however, Teresa returned to state court and filed a peti-
tion for a writ of habeas corpus in the original jurisdiction of the
South Carolina Supreme Court. In this petition, Teresa advanced the
same two grounds for relief that she raised in her§ 2254 application:
(1) that she was denied effective assistance of counsel because of the
joint representation, and (2) that her "waiver of her right to conflict-
free representation was the invalid product of battering, domination
and abuse by her co-defendant." J.A. 188. In support of the petition,

                    6
Teresa submitted the same affidavits and psychological report that
had been submitted for the first time in federal court.7

The State moved to dismiss the petition, urging the South Carolina
Supreme Court to find that Teresa's claims were procedurally barred
under state law. Without requesting that the State formally answer the
habeas petition, the South Carolina Supreme Court then summarily
denied the petition in a one-sentence order: "Petition for Habeas Cor-
pus is denied." J.A. 221. The magistrate judge thereafter refused to
consider the affidavits and the psychological report on BWS and rec-
ommended that the district court deny Teresa's § 2254 application.

The district court agreed with the magistrate judge's recommenda-
tion that Teresa be denied relief on her § 2254 application and granted
summary judgment to the State. See Wilson v. Moore, 

, 793 (D.S.C. 1998). With respect to the new factual grounds for
relief, the district court concluded that the South Carolina Supreme
Court had disposed of Teresa's petition for original habeas on state
procedural grounds and thus had not considered the merits of her peti-
tion "in light of the new evidence." 

Therefore, the district
court concluded that because the state courts did not take into account
Teresa's additional evidence in denying her collateral relief, it could
not consider this evidence in reviewing her § 2254 application.8 Turn-
ing to the merits of her Sixth Amendment claims, the district court
held that the PCR court had correctly rejected Teresa's ineffective
assistance claim and that Teresa effectively waived her right to sepa-
rate counsel. See 

_________________________________________________________________

7 Teresa's § 2254 application and her habeas petition to the South Caro-
lina Supreme Court in its original jurisdiction were virtually identical. At
oral argument, it was established that Teresa petitioned the South Caro-
lina Supreme Court in a last-minute attempt to have the state courts con-
sider the evidence.

8 The district court also decided that Teresa was not entitled to an evi-
dentiary hearing on this new evidence. See 28 U.S.C.A. § 2254(e)(2)
(West Supp. 1998). Teresa does not challenge this conclusion on appeal.

                     7
II.

Teresa directs her argument primarily toward the district court's
ruling that the South Carolina Supreme Court refused to reach the
merits of her habeas petition and, therefore, did not consider her new
evidence. Teresa contends that the "denial" language used by the state
supreme court in its summary order, and "the practical necessity" of
considering the merits in order to decide if it should exercise its origi-
nal jurisdiction, demonstrate that the court indeed considered the evi-
dence but rejected her federal claims on the merits. Therefore, she
argues, there is no procedural impediment to consideration of this
newly presented evidence by a federal habeas court. And, she insists,
were the court to include the additional affidavits and the psychologi-
cal evidence in its analysis, "the merit of appellant's Sixth Amend-
ment conflict claim becomes unmistakable." Br. of Appellant at 10.

A.

Federal habeas courts may not consider a § 2254 claim if a state
court disposed of the claim on adequate and independent state
grounds unless the habeas applicant can demonstrate cause and actual
prejudice or a "fundamental miscarriage of justice." Harris v. Reed,

, 262 (1989) (internal quotation marks omitted). Here,
Teresa's claims that she received ineffective assistance of counsel
because of a conflict of interest, and that she did not effectively waive
her right to separate counsel, were unquestionably presented to the
state PCR court, which disposed of the claim on the merits; thus, the
district court was obliged to address these claims on the merits.

The question here is whether a federal court may consider evidence
submitted in support of a § 2254 application if the state court refused
to consider the evidence based on adequate and independent state
grounds. In this case, Teresa's evidence that she suffered from BWS
was not submitted to the PCR court as a factual basis for her claims.
Rather, Teresa presented these allegations to the state court -- via a
petition for a writ of habeas corpus in the South Carolina Supreme
Court -- only after she had filed her § 2254 application in the district
court.

The adequate and independent state ground doctrine, which pre-
cludes federal habeas courts from considering procedurally defaulted

                     8
claims, rests on principles of comity; "[i]t concerns the respect that
federal courts owe the States and the States' procedural rules when
reviewing the claims of state prisoners in federal habeas corpus."
Coleman v. Thompson, 

, 726 (1991). In the same way,
a federal habeas applicant must develop the factual basis for a claim
in state court to "accommodate concerns of finality, comity, judicial
economy, and channeling the resolution of claims into the most
appropriate forum." Keeney v. Tamayo-Reyes , 

, 8 (1992).
As the Keeney Court observed, "it is ... irrational to distinguish
between failing to properly assert a federal claim in state court and
failing in state court to properly develop such a claim." 

Thus, because of these principles of federalism, the Court in Keeney
concluded that the same cause-and-prejudice standard analyzed in
Coleman should apply to factual bases that were not developed in
state court as well as to claims that were not cultivated during state
proceedings. See 

. Teresa has made no
attempt, however, to demonstrate cause and prejudice for her failure
to present this evidence to the state PCR court. See Thomas v. Taylor,

, 

, at *4 n.9 (4th Cir. March 16, 1999).

Accordingly, the district court could only consider this newly pre-
sented evidence on summary judgment if the state supreme court dis-
posed of the habeas petition on the merits, which would require con-
sideration of the new evidence. Conversely, if the state supreme court
found the petition procedurally barred, and therefore did not consider
the new evidence, the district court could not take the new evidence
into account when considering Teresa's § 2254 claims. Cf. Ylst v.
Nunnemaker, 

, 801 (1991) ("State procedural bars are
not immortal ... [i]f the last state court to be presented with a particu-
lar federal claim reaches the merits, it removes any bar to federal-
court review that might otherwise have been available."). This much
the parties agree upon.

B.

We turn, then, to the question of whether the South Carolina
Supreme Court, in its original jurisdiction, ruled on the merits of
Teresa's habeas petition and, therefore, necessarily considered the
new evidence. Although the concept that federal habeas courts may
not consider a § 2254 claim if a state court disposed of the claim on

                     9
adequate and independent state procedural grounds (absent cause and
prejudice or a fundamental miscarriage of justice) seems easily
grasped, this principle can be difficult to apply when the state court
renders an ambiguous order or disposes of the claim in summary fash-
ion. Harris addressed this problem by developing a presumption that
"a procedural default does not bar consideration of a federal claim on
either direct or habeas review unless the last state court rendering a
judgment in the case clearly and expressly states that its judgment
rests on a state procedural bar." 

(internal quo-
tation marks omitted). The presumption developed in Harris, how-
ever, does not apply unless "it fairly appears that a state court
judgment rested primarily on federal law or was interwoven with fed-
eral law, that is, in those cases where a federal court has good reason
to question whether there is an independent and adequate state ground
for the decision." 

. Therefore, only when the
decision of the state court fairly appears to be grounded in federal law
must "federal habeas courts ... conclusively presume that a state deci-
sion does not rest on an independent and adequate state ground,
unless the state court's opinion contains a plain statement that [its]
decision rests upon adequate and independent state grounds." Smith
v. Dixon, 

, 962 (4th Cir. 1994) (en banc) (internal quota-
tion marks omitted) (alteration in original).

The rub comes in attempting to decipher the basis for an unex-
plained state order, i.e., in deciding whether a state court's summary
disposition -- like the one-sentence denial at issue here -- "fairly
appears" to rest on federal law or on an adequate and independent
state ground. Fortunately, there are some general guideposts to direct
our inquiry. First, federal habeas courts should simply look to the text
of the state court's order for clues, see Skipper v. French, 

, 611 (4th Cir. 1997), in particular whether the state order men-
tions federal law, see 

; 

. Also, the language used by the state court in disposing of the
claim may suggest a basis for the order. See 

(noting the use of "dismissed" rather than"denied" may be instruc-
tive). Second, federal habeas courts should consider the circumstances
surrounding the entry of the state order. See 

at 802;

. For example, the federal habeas court's
decision might be informed by examining whether the claims pre-
sented to the state court were subject to summary denial on proce-

                    10
dural grounds under state law, see 

, or whether
the state court refused to conduct an evidentiary hearing, see 

see also 

(noting that it may be helpful
to consider the procedural posture of the state decision and the motion
papers submitted to the state court).

C.

Guided by these general precepts, we turn to consider whether the
South Carolina Supreme Court's one-sentence order denying Teresa's
petition for a writ of habeas corpus "fairly appears" to rest on federal
law.

1.

The order of the South Carolina Supreme Court makes no mention
of federal law. Teresa contends that this omission is not a meaningful
clue as to the basis of the decision since the order does not mention
state law either. Contrary to Teresa's position, however, the Supreme
Court has made clear that the failure to mention federal law supports
the conclusion that the state order "fairly appears" to rest on state law,
even though the state order does not refer expressly to state law. See

("It is not necessarily the case that state
courts will take pains to provide a clear and express statement of pro-
cedural default in all cases."). Actually, it has been readily apparent
since Coleman that the lack of any mention of federal law is a signifi-
cant indication that the state order does not rest on federal law. See

("This failure is extremely significant
in view of the importance the Supreme Court has placed on the neces-
sity of a clear indication that federal law controlled the decision prior
to applying the Harris presumption."); see also Jones v. Jerrison, 

, 855-56 (8th Cir. 1994) (refusing to apply the Harris pre-
sumption to a one-sentence state order because the order did not refer
to federal law). Accordingly, we conclude that the failure of the South
Carolina Supreme Court to mention federal law strongly supports the
conclusion that its decision does not fairly appear to rest on federal
law. See 

; Smith , 14 F.3d at 964 (finding
"the failure of the summary order to refer to federal law ... compelling
evidence that the summary order does not fairly appear to rest on fed-
eral law or to be interwoven with federal law").

                     11
2.

Teresa contends that the South Carolina Supreme Court's disposi-
tion of her petition -- a "denial" rather than a "dismissal" -- indicates
that the court considered the merits of her petition or, at the least,
gives us good cause to question whether the state order was founded
upon an adequate and independent state ground.

We first note that although the use of "deny" or "dismiss" by the
state court might provide a hint as to the basis for a state court's sum-
mary disposition, see 

, federal habeas courts are
not to conclude blindly that the summary "denial" of a habeas petition
always and necessarily means the state court considered the merits of
a claim, regardless of context, see 

(explaining
that in light of North Carolina law, the state court's "denial" did not
necessarily indicate the state court considered the merits). Context is
important. In Coleman, for example, the state supreme court's use of
"dismissal" was significant because the order expressly indicated that
the court was granting the State's motion to dismiss, which was based
solely on procedural grounds. See 

. Thus,
use of "deny" or "dismiss" by the state court does not in and of itself
conclusively tell us whether the state court's decision was based on
the merits or on a state procedural rule.

Relying on three unpublished orders in which the South Carolina
Supreme Court disposed of various habeas petitions, Teresa argues
that the South Carolina Supreme Court has been careful to use the
term "deny" when rejecting a habeas petition on the merits. We can-
not agree. Indeed, one of the very orders upon which Teresa relies,
Adams v. Moore, (S.C. Aug. 17, 1995) (unpublished order), illustrates
the opposite point -- that the South Carolina Supreme Court attaches
no particular meaning to the term "deny" as opposed to "dismiss." In
the Adams order, the court expressly rejected one habeas claim on
procedural grounds and the remaining claims on their merits. The
court concluded that the habeas petition should be"denied" in its
entirety, failing to distinguish between the procedurally barred claim
and the claims which were rejected on the merits. See J.A. 234-36.

The second unpublished order of the South Carolina Supreme
Court that Teresa relies upon is similar to the order in this case, pro-

                     12
viding in its entirety, "The petition for writ of habeas corpus is
denied." Woomer v. State, (S.C. June 8, 1989) (unpublished order);
see J.A. 239. However, we do not find the court's use of "denied" par-
ticularly telling. The State moved that the court clarify the basis of its
order in Woomer so as to avoid the effect of the Harris presumption.
The South Carolina Supreme Court denied the motion. Teresa sug-
gests that the United States Supreme Court subsequently considered
the merits of Woomer's habeas claims when it stayed the petitioner's
execution while his petition for certiorari was pending, see Woomer
v. Evatt, 

(1989) (mem.), but later denied certiorari, see
Woomer v. Evatt, 

(1990) (mem.). We do not read into
the actions of the Supreme Court the meaning which Teresa com-
mends to us. Further, the Woomer order was issued prior to the South
Carolina Supreme Court's order in Adams in which the court "denied"
habeas claims on both procedural and substantive grounds. Thus,
even if the Woomer order was instructive, the South Carolina
Supreme Court, since that time, has employed the term "denied" to
dispose of claims on both procedural grounds and on the merits.9

We simply cannot discern a pattern in the South Carolina Supreme
Court's use of "denied" as opposed to "dismissed" in disposing of
habeas petitions on their merits or on state procedural grounds.
Accordingly, we do not find the use of "denied" versus "dismissed"
particularly instructive, and we reject Teresa's position that it requires
the conclusion that her petition was rejected on the merits.
_________________________________________________________________

9 Nor are we persuaded by Teresa's reliance on a third unpublished
order of the South Carolina Supreme Court, which was reviewed by the
United States Supreme Court even though the South Carolina Supreme
Court had apparently "denied by summary order" a petition for a writ of
habeas corpus in the court's original jurisdiction. See Yates v. Aiken, 

, 85 (S.C. 1986), rev'd, 

(1988). It is not apparent
from these decisions whether the order mentioned federal law or whether
the surrounding circumstances provided guidance in discovering the
basis of the order. Moreover, the Supreme Court's initial review of the
summary order, see Yates v. Aiken, 

(1985), occurred prior
to both Harris and Coleman.

                     13
3.

After examining the totality of the circumstances accompanying
the entry of the state order, we conclude that the order fairly appears
to rest on state procedural grounds, not federal law. Several consider-
ations lead us to this conclusion.

As an initial matter, it is helpful to understand the nature of the
relief Teresa sought when she made her belated return to state court
during the course of her federal habeas proceedings. It is clear that
Teresa's claims, which presented new factual grounds for relief,
would have been barred had they been presented in a successive PCR
application. The South Carolina Uniform Post-Conviction Procedure
Act requires PCR applicants to present all of their claims and grounds
for relief at the same time:

          All grounds for relief available to an applicant under this
          chapter must be raised in his original, supplemental or
          amended application. Any ground finally adjudicated or not
          so raised ... may not be the basis for a subsequent applica-
          tion, unless the court finds a ground for relief asserted which
          for sufficient reason was not asserted or was inadequately
          raised in the original, supplemental or amended application.

S.C. Code Ann. § 17-27-90 (Law. Co-op. 1985)."[A]s long as it was
possible to raise the argument in his first PCR application, an appli-
cant may not raise it in a successive application." Aice v. State, 

, 394 (S.C. 1991). Teresa does not dispute that she did not
present the new factual grounds for relief -- her alleged BWS -- to
the PCR court. Therefore, Teresa clearly would be precluded from fil-
ing a successive PCR application that included her new grounds for
relief.

Aware of the rule against successive PCR applications, Teresa
instead sought a writ of habeas corpus from the South Carolina
Supreme Court in its original jurisdiction. In South Carolina, the
scope of habeas corpus relief has been greatly curtailed by the South
Carolina Uniform Post-Conviction Procedure Act, which essentially
displaced the relief that was previously available under the common
law writ. See S.C. Code Ann. § 17-27-20(b) ("[The Act] comprehends

                    14
and takes the place of all other common law, statutory or other reme-
dies heretofore available for challenging the validity of the conviction
or sentence."); see also Simpson v. State, 

, 430 (S.C.
1998). "[A] matter which is cognizable under the Act may not be
raised by a petition for a writ of habeas corpus before the circuit or
other lower courts." 

(emphasis added).

The South Carolina Supreme Court, however, retains its power
under the state constitution to grant a writ of habeas corpus in its orig-
inal jurisdiction. See 

n.4. But, this remedy is available only
under the most extraordinary circumstances. The South Carolina
Supreme Court, sitting in its original jurisdiction, will grant a writ of
habeas corpus to correct only those infractions which "in the setting,
constitute[ ] a denial of fundamental fairness shocking to the universal
sense of justice." Butler v. State, 

, 88 (S.C. 1990) (inter-
nal quotation marks omitted) (emphasis in original). At bottom,
habeas relief exists in South Carolina for prisoners who, after
exhausting all other means of relief, have "been utterly failed by [the]
criminal justice system." State v. Torrence , 

, 328 (S.C.
1991) (Toal, J., concurring).

Thus, Teresa sought an extreme remedy from the South Carolina
Supreme Court based on grounds she agrees were available during her
state PCR proceedings. Nevertheless, she argues that these new
grounds for relief were not subject to dismissal on state procedural
grounds because, she claims, the South Carolina Supreme Court's
review of habeas petitions under the Butler"fundamental fairness"
standard necessarily requires a merits determination. According to
this argument, habeas petitions invoking the original jurisdiction of
the South Carolina Supreme Court are free of procedural strictures
and can never be rejected on procedural grounds under any circum-
stances. The South Carolina Supreme Court, therefore, would always
be constrained to get into the merits of any habeas petition filed in the
court's original jurisdiction. We think her argument goes too far.

It has long been the case under South Carolina law that habeas cor-
pus "cannot be used as a substitute for appeal or other remedial proce-
dure[s] for the correction of errors of law of which the defendant had
an opportunity to avail himself." Tyler v. State, 

, 436
(S.C. 1965). Thus, a prisoner may not disguise what is really a PCR

                     15
application by calling it a habeas petition. See 

. This is so because South Carolina, like other jurisdictions, has
a strong interest in promoting finality in the criminal justice system
and in limiting the stream of attempts at collateral relief in any one
case which often are "limited only by the imagination and creativity
of skilled attorneys." 

. As the South Carolina
Supreme Court has explained:

          Finality must be realized at some point in order to achieve
          a semblance of effectiveness in dispensing justice. At some
          juncture judicial review must stop, with only the very rarest
          of exceptions, when the system has simply failed a defen-
          dant and where to continue the defendant's imprisonment
          without review would amount to a gross miscarriage of jus-
          tice.

397 S.E.2d at 87). Therefore, "[h]abeas corpus is
available only when other remedies, such as PCR, are inadequate or
unavailable." Gibson v. State, 

, 428 (S.C. 1998). And,
in order to demonstrate that they are not executing an end-run around
PCR procedures, state habeas petitioners must generally show that
"PCR is unavailable, all other remedies have been exhausted, and the
issues raised now could not have been raised in their prior PCR appli-
cations." 

Teresa's petition for habeas corpus to the South Carolina Supreme
Court was nothing more than an attempt to file a second PCR applica-
tion raising grounds for relief which she could have raised in support
of her first PCR application. There was nothing extraordinary about
the claims she raised in her habeas petition -- they were, in fact, iden-
tical to the claims she raised to the PCR court. Clearly, Teresa was
unable to show that the issues raised in her state habeas petition could
not have been raised in her prior PCR application, and therefore
habeas relief -- an extraordinary remedy -- was inappropriate. See

Because South Carolina eschews the use of habeas as a
belated substitute for a previously denied PCR application -- which
is certainly what happened here -- we conclude that Teresa's habeas
petition did not afford the South Carolina Supreme Court the extraor-
dinary reason necessary to exercise its original habeas jurisdiction.
The fact that habeas relief was inappropriate is strong evidence that

                     16
the South Carolina Supreme Court did not consider Teresa's federal
claims on the merits.

There are other considerations that bolster our conclusion that the
circumstances surrounding the entry of the South Carolina Supreme
Court's order suggest a procedural disposition. For one, the State
urged the South Carolina Supreme Court to dismiss Teresa's habeas
petition solely on procedural grounds. See 

.
The State argued that the claims raised in Teresa's habeas petition
were based on factual grounds that could have been advanced in sup-
port of her original PCR application and were thus barred as succes-
sive under S.C. Code Ann. § 17-27-90. In essence, the State
maintained that Teresa was simply invoking the court's original
habeas jurisdiction as a substitute for other available, more appropri-
ate forms of collateral relief under South Carolina law, which she was
not permitted to do. The State's return did not in any way address the
merits of the habeas petition.

This is particularly revealing in light of the procedural posture of
the petition when it was rejected. The South Carolina Rules of Appel-
late Procedure provide as follows:

          A party seeking to have the Supreme Court entertain an
          action in its original jurisdiction (petitioner) shall serve on
          all other parties (respondents) a petition for original jurisdic-
          tion, a complaint setting forth the claim for relief. . . and
          a notice advising each respondent he has twenty (20) days
          from the date of service to serve and file a return to the peti-
          tion. . . . Failure of a party to timely file a return may be
          deemed a consent by that party to the matter being heard in
          the original jurisdiction. . . . If the petition is granted, the
          respondent shall have thirty (30) days to serve and file an
          answer to the complaint. The Supreme Court may provide
          for discovery, fact finding and/or a briefing schedule as
          necessary.

Rule 229(c), SCACR (emphasis added).10 Thus, a respondent need not
_________________________________________________________________
10 Teresa combined her petition for original jurisdiction and the com-
plaint detailing her claims for relief.

                    17
even address the merits of a habeas petition unless the court first
decides to exercise its original jurisdiction and grants the petition.

Here, the State filed a return to Teresa's petition urging the court
not to exercise its original jurisdiction; it did not file an answer to the
complaint addressing the merits of her claims. The State specifically
noted this fact in its return: "Respondent will assume . . . that the
Court does not reach the substance and merits of Petitioner's claim
unless the Court actually requires Respondent to file an answer and
provides for discovery pursuant to Rule 229(c), South Carolina Rules
of Appellate Practice." J.A. 219. Because the court did not agree to
hear the matter in its original jurisdiction, the State was not required
to address the merits of the petition by filing an answer, nor did the
court provide for any discovery or fact finding by the litigants. The
court did nothing to suggest that it was considering Teresa's claims
on their merits. On the contrary, the court's rejection of the petition
without requiring a response from the State implies just the opposite
-- that the court never reached the merits of the petition.

A procedural disposition of Teresa's petition is also consistent with
the South Carolina Supreme Court's historical reluctance to exercise
its original jurisdiction, especially when there are other potential ave-
nues of relief for the petitioner:

          Although Article V, § 5, of the South Carolina Constitution
          vests this Court with the authority to issue extraordinary
          writs and entertain actions in its original jurisdiction, this
          Court's primary function is to act as an appellate court to
          review appeals from the trial courts. . . . [T]his Court has
          indicated it will not entertain matters in its original jurisdic-
          tion where the matter can be entertained in the trial courts
          of this State. Only when there is an extraordinary reason
          such as a question of significant public interest or an emer-
          gency will this Court exercise its original jurisdiction.

Key v. Currie, 

, 357 (S.C. 1991); see also Rule 229(a),
SCACR ("The Supreme Court will not entertain matters in its original
jurisdiction when the matter can be determined in a lower court in the
first instance, without material prejudice to the rights of the parties.").
In view of the fact that Teresa's habeas petition is nothing more than

                     18
an attempt to revitalize her first PCR claim, we are convinced that the
Supreme Court of South Carolina did not take the"extraordinary"
step of exercising its original jurisdiction to review her petition on the
merits.

In sum, the circumstances surrounding the entry of the state order,
coupled with its failure to mention federal law, leave us convinced
that the state supreme court did not visit the merits of Teresa's habeas
claims. We conclude that the decision of the state court does not
"fairly appear" to rest on federal law and, therefore, that the South
Carolina Supreme Court's decision was premised on adequate and
independent state grounds. It follows that the state court did not con-
sider the evidence of Teresa's alleged BWS. Neither shall we.

III.

Having concluded that the district court correctly refused to con-
sider the evidence of Teresa's alleged BWS, we turn to the merits of
her § 2254 application in light of the factual grounds that were pre-
sented to the PCR court. Section 2254(d) prohibits federal habeas
relief on any claim "adjudicated on the merits in State court proceed-
ings," unless the state court's decision was: (1)"contrary to, or
involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;" or (2)
"based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." 28 U.S.C.A.
§ 2254(d)(1)-(2). Thus, federal habeas relief is authorized under
§ 2254(d)(1) when the "state court decision is in square conflict with
a precedent (supreme court) which is controlling as to law and fact."
Green v. French, 

, 870 (4th Cir. 1998), cert. denied, 

(1999). In the absence of such a controlling precedent, the
applicant must demonstrate either that "the state court's resolution of
a question of pure law rests upon an objectively unreasonable deriva-
tion of legal principles from the relevant supreme court precedents,"
or that the state court's decision "rests upon an objectively unreason-
able application of established principles to new facts." 

"habeas relief is authorized only when the state courts have decided
the question by interpreting or applying the relevant precedent in a
manner that reasonable jurists would all agree is unreasonable." 

asserts two claims in her § 2254 application. First, she raises
a claim of ineffective assistance of counsel, contending that her attor-
ney was inhibited by a conflict of interest in light of his joint repre-
sentation of her and her husband. Second, she claims that she did not
knowingly and voluntarily waive her right to separate counsel. In con-
sidering these claims, the state PCR court found that Teresa effec-
tively waived her right to separate counsel. Although the PCR court
noted that Cuyler v. Sullivan, 

, 350 (1980), requires a
defendant to demonstrate that counsel actively represented conflicting
interests in order to establish an ineffective assistance claim, the order
of dismissal issued by the PCR court did not expressly determine
whether Teresa's counsel had an actual conflict of interest.

The district court concluded that the performance of Teresa's coun-
sel was not hampered by an actual conflict of interest and, therefore,
that the PCR court correctly rejected this claim. With respect to the
waiver issue, the district court determined that, even if an actual con-
flict existed, Teresa waived her right to separate counsel.

A.

We consider first whether the PCR court's determination that
Teresa waived her right to separate counsel rests upon an application
of "the relevant precedent in a manner that reasonable jurists would
all agree is unreasonable." 

. Although a crimi-
nal defendant has a Sixth Amendment right to conflict-free counsel,
this right may be waived so long as the waiver is knowing, voluntary,
and intelligent. See Gilbert v. Moore, 

, 653 (4th Cir.) (en
banc), cert. denied, 

(1998). After considering the testi-
mony of Teresa and her counsel, the PCR court concluded "that coun-
sel informed the Applicant of the hazards of representing co-
defendants and received assurance from both the Applicant and her
husband that they had no reservations concerning counsel's dual rep-
resentation." J.A. 111. Factual findings by the state court are pre-
sumptively correct. See 28 U.S.C.A. § 2254(e)(1). Moreover, as
detailed above, the record indisputably demonstrates that the state
trial judge thoroughly explained the difficulties created by joint repre-
sentation and even advised the Wilsons to retain separate counsel. In
fact, the trial judge even warned the Wilsons to anticipate the possi-
bility that an attorney representing co-defendants might be hampered

                     20
in attempting to negotiate a plea arrangement, which turned out to be
Teresa's chief complaint. Yet, Teresa indicated her assent to the
arrangement, both orally and in writing.

It seems quite clear that Teresa's waiver was knowing and intelli-
gent. Prior to signing the waiver form, she was alerted by the trial
judge to virtually every latent danger that could arise before or during
the course of the trial. The trial judge explained the concept of "con-
flict of interest" and made the Wilsons aware that one of them could
very well end up testifying against the other. Cf. Hoffman v. Leeke,

, 289 (4th Cir. 1990) (finding waiver was not knowing
because defendant was never told the meaning of conflict of interest
or that his co-defendants might testify against him). In light of the
evidence before the PCR court, Teresa has pointed to nothing that
indicates her decision to use the same lawyer as her husband was not
a knowing and voluntary decision. See Gilbert , 134 F.3d at 653 (not-
ing that the habeas petitioner bears the burden of demonstrating that
the waiver was not voluntary).

In view of the factual determination by the PCR court and the
lengthy pretrial hearing before the trial judge addressing the waiver
issue, we cannot conclude that the PCR court, in holding that Teresa
effectively waived separate counsel, applied the relevant precedent in
a manner that reasonable jurists would all agree is unreasonable. See

.

B.

Even if we believed the state court unreasonably determined that
Teresa waived her right to separate counsel, she would still not be
afforded any relief because we agree with the district court that her
counsel's performance was not adversely affected by an actual con-
flict of interest.

In order to establish an ineffective assistance of counsel claim
based on a conflict of interest, a federal habeas applicant must first
show that an actual conflict of interest exists. See 

. Since joint representation does not amount to a per se constitu-
tional violation, merely demonstrating a potential conflict of interest
will not suffice. See 

. An actual conflict exists

                    21
when the defendants' "interests diverge[d] with respect to a material
factual or legal issue or to a course of action." 

marks omitted) (alteration in original). Second, the habeas applicant
must demonstrate that the conflict of interest adversely affected coun-
sel's performance. See 

. The adverse perfor-
mance requirement is satisfied "if the attorney took action on behalf
of one client that was necessarily adverse to the defense of the other
or failed to take action on behalf of one because it would adversely
affect the other." Williams v. French, 

, 212 (4th Cir.
1998), cert. denied, 

(1999). Prejudice is presumed
and the applicant is entitled to relief, however, if these showings are
made. See 

.

Because the PCR court made no express determination of whether
the Wilsons' trial counsel labored under an actual conflict of interest
-- making the basis for its application of federal law to this issue
unclear -- the district court conducted a de novo review of the issue.
See Cardwell v. Greene, 

, 339 (4th Cir.), cert. denied,

(1998) (explaining that "the distinction between de
novo review and `reasonableness' review becomes[in]significant"
when the state court does not offer any rationale for its ruling).

Teresa argues that an actual conflict became apparent when Teresa
was offered a plea bargain of seven to twenty-five years; Ronnie was
offered no such deal. She contends it was clearly in her best interest
to pursue a plea arrangement, including the possibility of cooperating
against Ronnie. Because of her attorney's duty of loyalty to Ronnie,
she claims, this option was not vigorously pursued. However, Tere-
sa's trial counsel provided unrefuted testimony at the PCR hearing
that, when he presented Teresa with the plea bargain-- which he
negotiated with the prosecutor -- she and Ronnie both rejected the
idea of Teresa receiving any jail time. According to counsel, Ronnie
was prepared to plead guilty as long as Teresa would avoid doing a
prison sentence. As the district court noted, Teresa's failure to obtain
a plea bargain was, in large part, the result of her desire to avoid
prison, which was unrealistic in light of the abundant evidence linking
her to the drug conspiracy. In any event, we perceive no actual con-
flict under the circumstances.

Moreover, the testimony during the PCR hearing made clear that
Teresa and Ronnie did not have antagonistic positions with respect to

                     22
any factual or legal issues. Counsel testified that Ronnie consistently
maintained the position that Teresa was not involved in the conspir-
acy; that neither of them had a good factual defense to the conspiracy
charges; and that the best defense for both of them was legal in
nature.

We conclude that Teresa has not demonstrated that her attorney's
performance was adversely affected by an actual conflict, and we
therefore reject her claims for federal habeas relief.

IV.

For the foregoing reasons, we conclude that the state courts of
South Carolina, in rejecting Teresa's Sixth Amendment claims, did
not consider the evidence of her alleged physical abuse. Accordingly,
we will not consider it either. Having found her claims to be without
merit, we affirm the district court's denial of her§ 2254 application.

AFFIRMED

                    23