In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2632

LEVELL TAYLOR,

Petitioner-Appellant,

v.

RANDY GROUNDS, 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.

ARGUED MARCH 1, 2013—DECIDED JULY 3, 2013

Before ROVNER,WILLIAMS, and HAMILTON,Circuit Judges.

WILLIAMS, Circuit Judge. Petitioner Levell Taylor (“Taylor”) 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 simultaneous 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 performance 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, 446 U.S.

335 (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 constituted 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 performance 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 questioned 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 simultaneous 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 commission 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-examination, 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 testimony, 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’ imprisonment. 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 attached 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

Plummer’s affidavit stated that “I saw Levell take out a gun 1

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. 

Lowell a gun. Woods and Plummer asserted in their 1

affidavits that upon receiving this information, Prusak

stated that he could not call either witness at trial because 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 crossexamination, 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
No. 12-2632 7

statement. Bingham stated that at the time of his questioning 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 Attorney 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 crossexamination, 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 witnesses 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 witnesses Taylor presented. One explanation was that

the weakness of the State’s case against Taylor rendered

the additional witnesses unnecessary. In Prusak’s estimation, 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 witnesses 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 credibility 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

According to the ARDC complaint, Prusak cross-examined 2

an eyewitness to an armed robbery so as to solidify her identification 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 prosecution could not have done a better job of eliciting facts that

(continued...)

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). Eventually, the Illinois Su- 2
12 No. 12-2632

(...continued)

supported her identification of defendant White, counsel’s

own client.” People v. White, 842 N.E.2d 188, 192 (Ill. App.

Ct. 2005).

preme Court suspended Prusak from the practice of law

pending his compliance with certain conditions including 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 Commission of the Supreme Court of Illinois, LAWYER SEARCH,

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 Taylor’s postconviction petition. People v. Taylor, 930 N.E.2d

959 (2010). The court applied the framework described

in Cuyler v. Sullivan, 446 U.S. 335 (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
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 counsel’s strategy tactics, or decision making attributable to

the conflict.” Id. at 971-72 (citations and internal quotation marks omitted).

Using this analysis, the court found that Taylor “failed

to establish an actual conflict of interest in the joint representation of himself and Lowell that adversely affected

Prusak’s performance at trial.” Id. at 972. After noting

that “the only alleged specific defect in Prusak’s representation 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.” Id. at 972. Put another way, “[t]he mere availability of a strategy that would have helped one

criminal codefendant at the expense of another does not

create hostility between their interests.” Id.

The court 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 conflict of interest.” Id. at 973. 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.” Id. In affirming

the circuit court’s alleged credibility determination, the

Illinois Supreme Court relied on discrepancies among

the testimony of Taylor and his purported witnesses. Id.

at 973-74.

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 concluded that any conflict of interest in Prusak’s joint representation 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 decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined 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, 702 F.3d 411, 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, 529 U.S. 362, 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 disagreement.” Harrington v. Richter, 131 S. Ct. 770, 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 evidence. 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, 545 U.S. 231, 240

(2005) (quoting Miller-El v. Cockrell, 537 U.S. 322 (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 determination of the facts if it rests upon fact-finding

that ignores the clear and convincing weight of the evidence.” Goudy v. Basinger, 604 F.3d 394, 399-400 (7th Cir.

2010) (citing Ward v. Sternes, 334 F.3d 696 (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 evidence 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, 446 U.S. 335 (1980), and related cases. In

Sullivan, the Supreme Court held that a defendant who

raised no conflict of interest objection at trial must demonstrate that (1) the defendant’s interests conflicted with

those of a codefendant represented by the same attorney; and (2) the conflict “adversely affected his

lawyer’s performance.” Id. at 348-49; see also Mickens v.

Taylor, 535 U.S. 162, 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, 450 U.S. 261,

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.”

Sullivan, 446 U.S. at 349-50.

Although the Illinois Supreme Court correctly identified

the Sullivan analysis as the standard governing Taylor’s

claim, Taylor, 930 N.E.2d at 970-74, Taylor contends that

the court unreasonably applied Sullivan and other

Supreme Court case law in holding that his Sixth Amendment 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 unreasonably 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.” Taylor, 930 N.E.2d at 972.

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 possibility that the interests of [Taylor] and Lowell may diverge. . . 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.” Id. (emphasis in 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, 435 U.S. 475, 482-83 (1978) (“ ‘A

common defense often gives strength against a common

attack’ ” (quoting Glasser v. United States, 315 U.S. 60, 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 Sullivan, 446 U.S.

at 350 (remanding for consideration of whether petitioner’s counsel labored under conflict of interest when

deciding against presenting defense in order to protect

codefendants’ interests); see also Glasser v. United States,

315 U.S. 60, 72-73, 75-76 (1942) (finding defendant denied

effective assistance when his attorney declined to crossexamine 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 Holloway, 435 U.S. at 490 (“[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, 84 F.3d 880, 887 (7th Cir.

1996) (“The test for conflict between defendants is not

whether the defenses actually chosen by them are consistent 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, 721

F.2d 586, 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. Sullivan, 446 U.S. at 349

(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 provided his brother with the murder weapon.

Furthermore, Taylor’s interest in presenting his exculpatory 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 simultaneous trials before separate triers of fact, Sullivan, 446

U.S. at 347, 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 severance does not automatically cure a conflict of interest

between codefendants. Id. at 338-39, 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] witnesses 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 procedural 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 justification 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. Holloway, 435 U.S. at 489-90 (“Joint representation of conflicting 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.”

Richter, 131 S. Ct. at 786-87.

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. Sullivan, 446 U.S. at 348. 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, 483 U.S. 776, 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); Goudy, 604 F.3d at 399-400.

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 unrelated to the conflict of interest between Taylor and

Lowell. Taylor, 930 N.E.2d at 972-74. The Illinois Supreme

Court concluded that Prusak decided against presenting

Taylor’s witnesses because, “in his professional judgment, they were weak witnesses,” and because he

thought that Taylor would be better served by simply

attacking the sufficiency of the State’s evidence. Id.

Because Prusak’s rationale did not implicate the competing interests of the two brothers, the court held that

Taylor could not establish a violation of his Sixth Amendment rights. Id. at 974.

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. Id. at 973-74. 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[.]” Id. at 970. 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 conflict of interest.” Id. at 973. Given that resolution of this

issue “rested substantially on the credibility of the witnesses 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. Id.

Taylor challenges the Illinois Supreme Court’s finding

that the postconviction trial court made an implicit credibility 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 postconviction trial court found unless the petitioner presents

clear and convincing evidence to overcome that presumption. 28 U.S.C. § 2254(e)(1); Parker v. Dugger, 498 U.S. 308,

320 (1991) (holding that a state appellate court’s “determination of what the trial judge found is an issue of

historical fact” entitled to appropriate deference under

§ 2254); Wright v. Walls, 288 F.3d 937, 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 Taylor’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 receive any substantial deviation of his constitutional 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 surrounding Prusak’s representation of Taylor. The trial

court cites no facts and does not describe the legal principles 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 considered. 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 Amendment 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.

Sullivan, 446 U.S. at 349. 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

This case presents an entirely different set of circumstances 3

than that confronting the Supreme Court in La Vallee v. Delle

(continued...)

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 Supreme 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 circumstances, 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
No. 12-2632 27

(...continued)

Rose, 410 U.S. 690 (1973) (per curiam). In that case, the state trial

court conducted an evidentiary hearing regarding the voluntariness 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[.]” Id. at 690. 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. Id. at 694. The Supreme Court

reversed, concluding that “it can scarcely be doubted from its

written opinion that respondent’s factual contentions were

resolved against him.” Id. at 692. 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. Id. at 694.

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

(...continued)

Delle Rose provided a lengthy discussion of the relevant evidence 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.

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, 449 U.S. 539, 545-46 (1981);

Miranda v. Leibach, 394 F.3d 984, 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.” Taylor, 930 N.E.2d at 973

(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 id. (“Indeed, the 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
No. 12-2632 29

additional support to our conclusion. Id. at 970. 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, 882 N.E.2d 999, 1005 (Ill. 2008); see also

Wrinkles v. Buss, 537 F.3d 804, 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 circumstances, 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

Goudy, 604 F.3d at 399-400.
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 question of whether Prusak’s performance was adversely

affected by the conflict remains unresolved. Despite

holding an evidentiary hearing, the Illinois postconviction 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, 689 F.3d 838, 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, 713 F.3d

887, 895-96 (7th Cir. 2013).

Such a result is consistent with the Supreme Court’s

decision in Cullen v. Pinholster, 131 S. Ct. 1388 (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.” Id. at 1398. Indeed, Justice Breyer

recognized that an evidentiary hearing would be necessary 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).

Id. at 1412 (Breyer, J., concurring in part and dissenting in

part). 

On remand, the district court should conduct an evidentiary 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 REVERSE the district

court’s denial of Taylor’s petition and REMAND for

further proceedings consistent with opinion.

7-3-13