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NOT DESIGNATED FOR PUBLICATION

No. 126,047

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

FOSTER EVERETTE,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Seward District Court; LINDA P. GILMORE, judge. Not submitted for oral argument.

Opinion filed June 7, 2024. Affirmed.

Joseph T. Welsh, of Sublette, for appellant.

Russell Hasenbank, county attorney, and Kris W. Kobach, attorney general, for appellee. 

Before ARNOLD-BURGER, C.J., ATCHESON, J., and TIMOTHY G. LAHEY, S.J.

PER CURIAM: After an evidentiary hearing, the Seward County District Court 

denied Foster Lee Everette's motion for habeas corpus relief from a jury verdict finding 

him guilty of second-degree murder in the strangulation death of his sometime girlfriend. 

On appeal, Everette contends the district court erred because his appointed lawyer in the 

criminal case both labored under a conflict of interest and chose not to introduce 

exculpatory evidence for the jury's consideration. Given the standards governing habeas 

corpus motions under K.S.A. 60-1507, we conclude Everette has failed to show his legal 

representation leading up to and during the criminal trial was compromised in a way 

entitling him to relief. We, therefore, affirm the district court.
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FACTUAL AND PROCEDURAL HISTORY

The theories of the crime and of the defense are almost deceptively 

straightforward. In early January 2015, a close relative of Andrea Garrison found her 

body apparently hanged from a rod in a bedroom closet of her home. The State contended 

Everette had killed Garrison, with whom he had an intimate, if rocky, relationship, and 

staged the scene to look like a suicide. The State charged Everette with premeditated 

first-degree murder. The defense countered that Garrison had, in fact, committed suicide. 

In a four-day trial beginning in late November 2015, the jurors convicted Everette

of intentional second-degree murder—the only lesser included offense the district court 

presented for their consideration. The district court later sentenced Everette to serve 272 

months in prison followed by postrelease supervision. Everette filed a direct appeal, and 

this court affirmed the conviction and sentence. The Kansas Supreme Court denied 

review. State v. Everette, No. 115,645, 2018 WL 4517575, at *1 (Kan. App. 2018) 

(unpublished opinion), rev. denied 309 Kan. 1350 (2019). 

Our earlier opinion includes an outline of the procedural history of the direct 

criminal case and an extensive discussion of the trial evidence. We assume the reader's 

general familiarity with that information and offer a few points of reference for context. 

The State charged Everette in late March 2015, and the district court appointed Razmi 

Tahirkheli, an experienced criminal defense lawyer, to represent him a few days later. 

During the trial, Dr. Hubert Peterson, the county coroner, testified that he 

autopsied Garrison's body and concluded the cause of death was asphyxiation and the 

mechanism was a belt found around Garrison's neck. But Dr. Peterson declined to offer 

an expert opinion based on his examination as to whether the death was a suicide or a 

homicide. He testified the body showed injuries consistent with a recent physical 

confrontation or struggle. Law enforcement investigators found no suicide note. Several 
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witnesses testified to the volatile relationship between Everette and Garrison that 

apparently had included his physical abuse of her. 

The State introduced text messages between Everette and Garrison shortly before 

her death in which he angrily accused her of having an intimate relationship with another 

man. Directly pertinent to this appeal, the State called Shroy Spradley as a trial witness; 

he told the jury that the day Garrison died, Everette said he intended to kill her by 

strangling her with a belt and making it look like suicide. Everette testified in his own 

defense and denied killing Garrison. He acknowledged their relationship had been a 

difficult one. Everette told the jurors Garrison had recently lost her job, needed money to 

pay her rent, abused illegal drugs, and was facing criminal charges—circumstances

otherwise generally corroborated in the trial evidence—that he suggested rendered her 

sufficiently despondent she committed suicide.

After the Kansas Supreme Court denied review, Everette timely filed a motion 

under K.S.A. 60-1507 in June 2020 collaterally challenging the conviction. The district 

court appointed a new lawyer to represent Everette in the 60-1507 proceeding and held an 

evidentiary hearing in August 2022. Everette presented testimony from the lead law 

enforcement investigator in Garrison's death and from Tahirkheli. The State presented no 

countering witnesses. About a month later, the district court issued a lengthy written

order denying the motion. Everette has appealed the ruling, and that is what we now have 

in front of us.

LEGAL ANALYSIS

On appeal, Everette raises two issues: (1) Tahirkheli labored under an 

impermissible conflict of interest because he represented Spradley as a defendant in 

another criminal case when he was appointed to represent Everette in late March 2015 

and continued to do so until Everette's arraignment in mid-August 2015; and (2)

Tahirkheli provided constitutionally ineffective representation at trial because he 
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unsuccessfully sought to admit as exhibits various text messages from Garrison shortly 

before her death. Before turning to those issues specifically, we lay out the general legal 

principles governing habeas corpus relief under K.S.A. 60-1507 based on ineffective 

legal representation and the more particularized principles applicable to conflicts of 

interest.

Because the district court held an evidentiary hearing on Everette's 60-1507 

motion, we accept the resulting findings of fact to the extent they are supported with 

substantial competent evidence. But we make an unlimited review of the determinative 

legal issues based on those factual findings. Bellamy v. State, 285 Kan. 346, 355, 172 

P.3d 10 (2007).

1. Legal Principles

A. Constitutionally Ineffective Representation

To prevail on an ineffectiveness claim, a convicted defendant must show both that 

his or her legal representation "fell below an objective standard of reasonableness" 

guaranteed by the right to counsel in the Sixth Amendment to the United States 

Constitution and that absent the substandard lawyering there is "a reasonable probability" 

the outcome in the criminal case would have been different. Strickland v. Washington, 

466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Phillips, 

312 Kan. 643, 676, 479 P.3d 176 (2021); Sola-Morales v. State, 300 Kan. 875, 882, 335 

P.3d 1162 (2014); see Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468 

(1985) (adopting and stating Strickland test for ineffective assistance). Reasonable 

representation demands that degree of "skill and knowledge as will render the trial a 

reliable adversarial testing process." Strickland, 466 U.S. at 688. A reasonable probability 

of a different outcome "undermine[s] confidence" in the result and marks the criminal 

proceeding as fundamentally unfair. 466 U.S. at 694. The movant, then, must prove both 
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constitutionally inadequate representation and sufficient prejudice attributable to that 

representation materially calling into question the resulting convictions.

As the United States Supreme Court and the Kansas Supreme Court have stressed, 

review of the representation should be deferential and hindsight criticism tempered lest 

the evaluation of a lawyer's performance be unduly colored by lack of success 

notwithstanding demonstrable competence. See Strickland, 466 U.S. at 689-90; Holmes 

v. State, 292 Kan. 271, 275, 252 P.3d 573 (2011). Rarely should a lawyer's representation 

be considered substandard when he or she investigates the client's circumstances and then 

makes a deliberate strategic choice among arguably suitable options. Strickland, 466 U.S. 

at 690-91. Whether a lawyer has made reasoned strategic decisions bears on the 

competence component of the Strickland test. In exceptionally rare circumstances, a 

reviewing court could find a defense strategy so obviously devoid of value as to be 

constitutionally suspect despite the lawyer's deliberative choice. See State v. Cheatham, 

296 Kan. 417, 446, 292 P.3d 318 (2013); State v. Hargrove, 48 Kan. App. 2d 522, 556-

57, 293 P.3d 787 (2013).

B. Conflicts of Interest

The rules for impermissible conflicts of interest are more intricate and depend, in 

part, on the nature of the conflict. We detailed those considerations in Sola-Morales v. 

State, No. 118,451, 2019 WL 6041443, at *6 (Kan. App. 2019) (unpublished opinion), 

and appropriate that discussion here:

"A criminal defendant may obtain relief in a habeas corpus action if his or her 

lawyer in the underlying case labored under an 'active' conflict of interest and the 

defendant either unsuccessfully objected to the representation at the time or can show the 

conflict compromised the representation. State v. McDaniel, 306 Kan. 595, 609, 395 P.3d 

429 (2017). Criminal defendants are constitutionally entitled to be represented by lawyers 

who have no conflicts of interest that would divert them from fully advocating on their 
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clients' behalf. Sola-Morales, 300 Kan. at 883; State v. Bowen, 299 Kan. 339, 343, 323 

P.3d 853 (2014). Such a conflict impinges on the Sixth Amendment right to counsel. 

Mickens v. Taylor, 535 U.S. 162, 166-67, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002); 

Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). 

"Relying on Mickens, the Kansas Supreme Court has recognized three categories 

of active conflicts of interest in criminal cases: (1) the district court permits a lawyer to 

represent multiple clients with antagonistic interests in the same proceeding despite an 

objection to the representation; (2) a lawyer represents multiple clients but no objection 

has been lodged; and (3) the representation of a current client conflicts either with a duty 

owed a former client or with the lawyer's own personal or financial interests. SolaMorales, 300 Kan. at 884. If the circumstances fall in the first category, the defendant is 

entitled to relief without showing actual prejudice. In the second instance, the defendant 

has to show that the conflict adversely affected his or her legal representation—a lower 

standard than the Strickland test for prejudice triggering a remedy. See Fuller v. State, 

303 Kan. 478, 487, 363 P.3d 373 (2015)."

Here, as was true for the lawyer in Sola-Morales, Tahirkheli did not represent 

multiple defendants in the same criminal case, so any conflict must fit in the third 

category. We, again, borrow from Sola-Morales:

"The Kansas Supreme Court has referred to that sort of conflict of interest as the 'Mickens

reservation' because the United States Supreme Court has not expressly identified 

whether the defendant must show merely an adverse effect on his or her representation, 

as required under Cuyler, or must show sufficiently deficient representation to undermine 

confidence in the outcome of the criminal case, as required under Strickland. Fuller, 303 

Kan. at 487; Sola-Morales, 300 Kan. at 884. The Kansas Supreme Court has yet to 

resolve the Mickens reservation by endorsing one or the other standard. See State v. 

Moyer, 309 Kan. 268, 279-80, 434 P.3d 829 (2019) (recognizing lack of governing 

standard); State v. Lindsay, No. 117,826, 2019 WL 2399477, at *7 (Kan. App. 2019) 

(unpublished opinion) (noting Kansas Supreme Court has treated standard as unresolved 

issue).
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"The Kansas Supreme Court most recently discussed the Mickens reservation in 

Moyer and identified three tests different courts have used to determine an 'adverse effect' 

on representation requiring relief, assuming the Cuyler standard rather than the Strickland

standard were to apply. 309 Kan. at 283-84. The most common test recognizes an adverse 

effect when the conflicted lawyer failed to undertake 'some "plausible alternative defense 

strategy or tactic that might have been pursued"' and made that choice because of the 

conflict. United States v. Levy, 25 F.3d 146, 157 (2d Cir. 1994); see Perillo v. Johnson, 

79 F.3d 441, 449 (5th Cir. 1996); Moyer, 309 Kan. at 283. The second formulation adds a 

requirement that the alternative strategy or tactic be 'objectively reasonable.' Moyer, 309 

Kan. at 283; see United States v. Nicholson, 611 F.3d 191, 197 (4th Cir. 2010). The third 

test, apparently unique to the Seventh Circuit, simply requires a showing of a reasonable 

likelihood the lawyer's representation would have been different had there been no 

conflict. Moyer, 309 Kan. at 283-84; see Hall v. United States, 371 F.3d 969, 974 (7th 

Cir. 2004). 

"The Moyer court acknowledged the three tests and, in particular, the discussion 

of them in West v. People, 341 P.3d 520 (Colo. 2015). But the court then recognized that 

Moyer would lose under each of three formulations of adverse effect and didn't identify 

one of them as the legally appropriate standard. Moyer, 309 Kan. at 284-85. So in 

Mickens reservation cases—where the defense lawyer had a conflict based on the past 

representation of another client or on some personal or financial interest—the Kansas 

Supreme Court appears to have left open whether the Strickland ineffectiveness standard 

or the Cuyler adverse effect standard applies and if Cuyler applies, the test for assessing 

adverse effect. We see Moyer's ecumenical approach to the test for adverse effect as 

superseding State v. Cheatham, 296 Kan. 417, 452, 292 P.3d 318 (2013), in which the 

court identified and considered only the Seventh Circuit test." 2019 WL 6041443, at *7.

The standard to be applied to a conflict of interest falling within the Mickens

reservation remains unsolved. The parties have not directed us to a case in which the 

Kansas Supreme Court has decided the issue, and we have found none. The United States 

Supreme Court does not appear to have settled the Mickens reservation standard, either. 

See Watson v. Fairbairn, No. 23-1392, 2024 WL 1005070, at *5 & n.2 (10th Cir. 2024) 

(unpublished opinion) (noting Mickens reservation standard remains open question).
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2. Tahirkheli's Alleged Conflict of Interest

On appeal, Everette contends Tahirkheli had an impermissible conflict of interest 

during the trial because of his past representation of Spradley. But Everette has not 

shown that Tahirkheli's representation of him was in any way compromised because of 

the alleged conflict—a necessary legal requirement for relief. The claim, therefore, fails.

The parties agree that Tahirkheli withdrew from representing Spradley as a 

defendant in a different criminal case in mid-August 2015—about four and half months 

after he began representing Everette and about three and a half months before Everette's 

trial. Everette's preliminary hearing was held during that period of dual representation, 

but Spradley did not testify then. Under those circumstances, Tahirkheli had a conflict of 

interest while he represented both Spradley and Everette, given what Spradley asserts 

Everette told him about harming Garrison. 

After Tahirkheli no longer represented Spradley, he had ongoing duties to 

Spradley as a former client, such as maintaining the confidentiality of their attorneyclient communications. It's less obvious, however, that Tahirkheli had a continuing 

obligation to Spradley that somehow impeded his representation of Everette leading up to 

and during the trial.

We, nonetheless, assume Tahirkheli had an active conflict at the time of Everette's

trial coming within the Mickens reservation based on his then-concluded representation 

of Spradley. Our assumption alone does not entitle Everette to relief. Under the Mickens

reservation, Everette must show, at the very least, that Tahirkheli's conflicting interests 

adversely affected how he represented Everette during the trial. Everette's appeal falters 

on this requirement. Everette has not endeavored to explain how any duty Tahirkheli 

continued to owe Spradley as a former client compromised Tahirkheli's representation of 

him in the trial. Absent such a showing, Everette cannot prevail on his argument. 
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As we have explained, an appellate court will grant relief without a showing of at 

least some prejudice only when a lawyer represents codefendants in the same case and 

someone calls a conflict based on the clients' antagonistic interests to the district court's 

attention and the district court then fails to act. Otherwise, the complaining client must 

show that the conflict prompted the lawyer to curtail his or her representation in some 

adverse way. Everette has not argued that Tahirkheli would have done something 

different in defending him during the trial but for his past representation of Spradley. The 

omission legally undermines his claim for relief.

On appeal, Everette tries to skirt that result by pointing out that Tahirkheli 

represented both him and Spradley at his preliminary hearing. But Spradley did not 

testify at the preliminary hearing. And Everette does not suggest either the preliminary 

hearing or the jury trial was compromised in any tangible way because of the dual 

representation. 

Similarly, Everette contends the record on appeal does not establish that he validly 

waived any conflict Tahirkheli may have had arising from his representation of Spradley. 

At the 60-1507 hearing, Tahirkheli testified that following a colloquy with the district 

court at the arraignment in August 2015, Everette orally waived any conflict. We are 

hamstrung in assessing this claim because the record does not include a transcript of the 

arraignment. We gather the electronic recording system failed, and the parties did not 

attempt to prepare and submit to the district court a reconstructed statement of the 

arraignment, as permitted under Supreme Court Rule 3.04 (2024 Kan. S. Ct. R. at 24). 

Rather than delving into the sufficiency of the waiver without a detailed record, we 

simply point out that the absence of a waiver does not in itself entitle Everette to relief. 

That is, a valid waiver of any conflict could well bar Everette's claim, but an ineffective 

waiver does not amount to a direct counterpoint requiring a substantive remedy. Everette

would still have to show the conflict caused Tahirkheli to compromise his trial 

representation. 
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We find that Everette has failed to show any trial prejudice tied to Tahirkheli's past 

representation of Spradley. The district court, therefore, correctly denied relief on the 

claim.

3. Tahirkheli's Alleged Ineffective Representation at Trial

On appeal, Everette contends Tahirkheli's representation of him during the trial 

was constitutionally ineffective and points to the lawyer's failed effort to introduce a 

series of text messages from Garrison shortly before her death as an exhibit for the jury's 

consideration. The parties agree some of the text messages contain language suggesting 

Garrison was threatening to kill herself or displaying suicidal ideation. The content would 

have supported the defense theory of Garrison's death.

During the trial Tahirkheli offered the messages as evidence, drawing an objection 

from the State for lack of foundation. Tahirkheli told the district court he did not have a 

witness from Garrison's telephone service provider or another witness who could 

establish an evidentiary foundation for the records. The district court sustained the 

objection, so the jurors never saw the messages or otherwise learned of their content. In 

closing argument, Tahirkheli told the jurors that although the State had possession of 

Garrison's smartphone, the prosecutor didn't offer records of her text messages. As we 

have described, the State did present various messages Everette sent Garrison.

At the hearing on Everette's 60-1507 motion, Tahirkheli testified that he made a 

strategic decision about Garrison's text messages: He would offer them without having a 

witness available to lay an adequate foundation for them in anticipation the State would 

object, and he would then argue to the jurors that the State was trying to hide relevant 

information supporting the defense. Tahirkheli explained he believed the admission of 

Garrison's messages could open the door for additional communications from Everette

that would be detrimental to the defense. If the State had not objected to the text 
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messages—contrary to his expectation—Tahirkheli testified that he was then prepared to 

tell the jurors they confirmed Garrison's intent to commit suicide. 

Tahirkheli described a reasoned, if unusual, trial strategy with respect to Garrison's 

text messages. Given the great deference accorded strategic choices under the Strickland

standard for assessing constitutional ineffectiveness, we are not prepared to say 

Tahirkheli's decision lacked an anchor in at least a colorably competent trial tactic to deal

with evidence that might wind up both advancing the defense theory in some ways and 

impeding it in other ways. As this court has pointed out: 

"It is not enough to show that other lawyers might have employed different trial 

strategies. In any given criminal case, there may be, and usually are, multiple approaches 

to diffusing bad evidence or shaping favorable evidence to motivate a jury to acquit. And 

each of those approaches can be considered reasonable. In short, there seldom is a single 

key to unlocking the hearts and minds of jurors. (In some cases, the facts may be such 

that no key will fit.) The test, of course, cannot be grounded in hindsight: Simply because 

the trial resulted in a conviction, defense counsel's strategic decisions should not be 

condemned as unreasonable." Long v. State, No. 102,909, 2011 WL 434014, at *2 (Kan. 

App. 2011) (unpublished opinion). 

Similarly, we found that a defense lawyer's decision not to seek pretrial exclusion of a 

child victim's identification of the defendant to law enforcement investigators entailed a 

reasoned, if ultimately unsuccessful, strategy in a sex offense prosecution. Bowles v. 

State, No. 110,203, 2014 WL 1708041, at *2 (Kan. App. 2014) (unpublished opinion) 

(The lawyer "made a reasoned election between options, and although the strategy did 

not yield the ultimate outcome he or Bowles had sought, the decision cannot be 

characterized as constitutionally ineffective representation."). 

 Tahirkheli's execution of the strategy, as reflected in the transcript of his closing 

argument to the jury, was considerably less vivid than his recollection of it during the 60-
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1507 hearing. But that does not undercut the tactical considerations that went into the 

trial strategy. We decline to endorse or otherwise grade the strategy apart from 

concluding it did not render Tahirkheli's representation of Everette constitutionally 

ineffective. That is sufficient to turn away Everette's appellate challenge to the district 

court's denial of the 60-1507 motion on this issue. We say no more. 

 Affirmed.