CourtListener 10846013

Full text

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: March 3, 2026

S26A0185. GIBSON v. HEAD, WARDEN.

LAGRUA, Justice.

Exzavious Gibson appeals the denial of his second petition for

writ of habeas corpus, which stemmed from his 1990 convictions for

murder and armed robbery. On appeal, Gibson contends that,

because his trial counsel labored under an obvious and

impermissible conflict by representing Gibson while also working as

a Special Assistant Attorney General, Gibson was denied the right

to effective assistance of counsel, and his convictions should be

vacated. For the reasons that follow, we affirm the habeas court’s

denial of Gibson’s petition because the record supports the habeas

court’s conclusion that Gibson failed to show that an actual conflict

of interest existed that significantly and adversely affected his trial
counsel’s performance.1 See Cuyler v. Sullivan, 446 US 335, 348–50

(1980).

1. The underlying proceedings.

(a) Trial and direct appeal. In 1990, a Dodge County jury found

Gibson guilty of murder and armed robbery arising out of the

February 1990 stabbing death of Doug Coley, who operated a

grocery store in Dodge County. See Gibson v. State, 261 Ga. 313, 313

(1991). Gibson, who was 17 years old at the time of the crimes,

entered the grocery store and “killed the owner with a knife by

stabbing and slashing him thirty-nine times.” Gibson v. Turpin, 270

Ga. 855, 855 (1999). Gibson “attacked the victim with such force that

the blade of the knife broke in the victim’s neck vertebrae,” but “he

continued stabbing with the handle and blade remnant.” Id.

Following Gibson’s arrest, “Gibson confessed that he robbed and

murdered the victim because he needed money for drugs” and

because the victim had “chastised” him earlier in the day for “using

—————————————————————
1 This case was docketed in this Court to the term beginning in December

2025 and was orally argued on January 20, 2026.
2
profanity.” Id. at 855–56. “Gibson told the police that he had no

regrets about what he had done.” Id. at 856.

Following Gibson’s convictions, the trial court sentenced him

to death for murder and to life in prison for armed robbery. See

Gibson, 261 Ga. at 313. Gibson was represented at trial by Dennis

Mullis, a public defender, who also filed a direct appeal on Gibson’s

behalf.2 In 1991, this Court affirmed Gibson’s convictions and

sentences. See id.

—————————————————————
2 In his direct appeal, Gibson argued that his convictions should be
reversed based on the following contentions: (1) the trial court erred by denying
his motion for change of venue because he could not get a fair trial in Dodge
County; (2) the trial court abused its discretion by denying Gibson’s motion to
compel the State to submit its requests to charge at least 24 hours before trial;
(3) the trial court erred by refusing to close the pretrial proceedings to the
media; (4) the trial court erred by denying Gibson’s motion to suppress bloody
money, bloody clothes, and the victim’s wallet seized from Gibson’s bedroom
because there was no evidence that the arresting officer was authorized to
enter the bedroom; (5) the attorney general’s response to Gibson’s attempt to
subpoena information from witnesses employed by the state crime laboratory
denied Gibson the effective assistance of counsel because Gibson was forced to
withdraw those subpoenas after the attorney general used “bullyboy” tactics
by seeking to quash the subpoenas, to assess costs, and to hold defense counsel
in contempt of court for filing the subpoenas; (6) the trial court abused its
discretion in denying Gibson’s motion for mistrial after the arresting officer
offered testimony based on hearsay; (7) the trial court erred by admitting pre-
autopsy photographs of the victim’s body; (8) the trial court abused its
discretion in denying Gibson’s motion for mistrial after the State asked Gibson
about how long the effects of crack cocaine lasted during the sentencing phase
3
(b) Habeas proceedings. After this Court affirmed Gibson’s

convictions and sentences on appeal, Gibson filed his first petition

for habeas corpus in the Superior Court of Butts County (the “habeas

court”) on December 20, 1995, “asserting ineffective assistance of

counsel, prosecutorial misconduct, and other claims.” Gibson, 270

Ga. at 855. After an evidentiary hearing in which Gibson appeared

pro se, the habeas court denied Gibson’s request for relief on March

11, 1997, and Gibson filed an application for a certificate of probable

cause to appeal to this Court, which the Court denied. See id.

In 2000, Gibson filed a second petition for habeas corpus,

alleging, among other things, that Mullis—his trial and appellate

counsel—had labored under a conflict of interest because, at the

time Mullis represented Gibson as a public defender, Mullis was also

working as a Special Assistant Attorney General representing the

—————————————————————
of the trial; (9) the evidence was insufficient to support the verdicts in this case;
and (10) the trial court’s jury instructions shifted the burden onto Gibson to
justify a life sentence. See Gibson, 261 Ga. at 314–17. Seeing no merit to any
of these contentions, this Court affirmed. See id.

4
Department of Transportation in highway condemnation matters—

which Gibson discovered after the proceedings on his first habeas

petition concluded. The habeas court dismissed Gibson’s second

habeas petition as successive under OCGA § 9-14-51, without

conducting an evidentiary hearing, and Gibson timely filed an

application for a certificate of probable cause to appeal to this Court.

This Court denied Gibson’s application as to all claims except his

conflict-of-interest claim. As to that claim, we remanded the case for

the habeas court to conduct an evidentiary hearing to determine if

Gibson’s conflict-of-interest claim, which was allegedly based on

newly discovered information, was procedurally barred and, if not,

if it had merit. See Gibson v. Head, 282 Ga. 156, 156 (2007)

(recounting procedural history).

Following an evidentiary hearing in September 2003, the

habeas court concluded that the conflict-of-interest claim was

procedurally barred, and it made no ruling regarding the underlying

merits of the claim. See Gibson, 282 Ga. at156. Thereafter, “[b]ased

5
on information in the trial record, this Court, on October 7, 2005,

again remanded Gibson’s case to the habeas court[3] to allow Gibson

to challenge his death sentence based on a recent decision by the

Supreme Court of the United States barring the execution of persons

who were under 18 years old at the time of their crimes. See Roper

v. Simmons, 543 US 551 (2005).” Id. On remand, the habeas court

vacated Gibson’s death sentence based on his age at the time of the

murder, but denied his other requests for relief, again concluding

that Gibson’s conflict-of-interest claim was procedurally barred. See

id. Gibson timely filed an application for a certificate of probable

cause to appeal to this Court, which was granted. See id.

On appeal, the Court concluded that the habeas court erred in

determining that Gibson’s conflict-of-interest claim was

procedurally barred because the habeas court had “failed to consider

that Gibson was entitled to presume that his trial counsel was not

laboring under an undisclosed conflict of interest,” given that “trial

—————————————————————
3 It is not clear from the record how the case was procedurally back in

this Court when we issued this remand.
6
counsel had an affirmative duty arising from several sources to

disclose his potential conflict.” Gibson, 282 Ga. at 157–58. The Court

also noted that Gibson’s conflict-of-interest claim “would not be

barred by res judicata … if it were based on facts that were not

reasonably available at the time of the habeas proceeding.” Id. at

159. In 2007, the Court remanded the case for the habeas court to

determine “the precise timing of Gibson’s discovery of the previously

undisclosed employment of his trial counsel as Special Assistant

Attorney General.” Id.

On November 28, 2023, the habeas court issued an order

denying Gibson’s second habeas petition.4 In the order, the habeas

court determined that Gibson’s conflict-of-interest claim was not

procedurally barred because “Gibson was entitled to presume that

his counsel was not laboring under a conflict of interest,” and Gibson

—————————————————————
4 Following this Court’s remand to the habeas court in 2007, see Gibson,

282 Ga. at 159, Gibson’s habeas case languished until 2023—for reasons that
are not apparent in the record—when an attorney entered an appearance on
Gibson’s behalf and submitted a proposed order granting Gibson’s second
habeas petition.
7
“could not reasonably have raised this claim” in his first habeas

petition. As to the merits of Gibson’s conflict-of-interest claim, the

habeas court considered the evidence presented at the 2003 hearing

on Gibson’s second habeas petition, 5 as well as the remainder of the

record, and denied Gibson’s claim on the merits, concluding that

Gibson failed “to show that an actual conflict of interest existed

which significantly and adversely affected his trial counsel’s

representation of Gibson,” citing Cuyler, 446 US at 348–50, and Hall

v. Jackson, 310 Ga. 714, 720 (2021).

In denying Gibson’s habeas petition, the habeas court noted

that, prior to trial, Mullis served subpoenas on several GBI analysts,

seeking the production of information the analysts utilized in

making their findings in this case. After the subpoenas were served,

the Attorney General, representing the GBI, moved to quash the

subpoenas on the basis that they were overly broad and sought

—————————————————————
5 Mullis testified at the September 9, 2003 hearing on Gibson’s second

habeas petition. Gibson also presented testimony from Mullis’s June 27, 2003
deposition, as well as other evidence, at that hearing.
8
information that was not discoverable. The motion to quash also

requested fees and sanctions against Mullis, including a request to

hold Mullis in contempt for the allegedly frivolous nature of the

subpoenas. When the motion to quash was argued at trial, Mullis

withdrew the subpoenas, explaining that he did not want to be

required to pay sanctions or be held in contempt, even though the

trial court advised that was unlikely to occur.

The habeas court observed that Gibson’s conflict-of-interest

claim centered on Mullis’s withdrawal of these subpoenas and an

assertion that, when the Attorney General’s Office filed a motion to

quash on behalf of the GBI, Mullis withdrew the subpoenas because

he did not want to jeopardize his position as a Special Assistant

Attorney General, not because of any concern about being

sanctioned or held in contempt. Gibson also claimed that Mullis’s

decision to withdraw the subpoenas demonstrated his conflicting

loyalties and adversely affected his representation of Gibson. The

9
habeas court disagreed, concluding that the evidence in the record

did not support Gibson’s contentions.

To that end, the habeas court noted that Mullis testified at a

1996 hearing on Gibson’s first habeas petition that his reason for

withdrawing the subpoenas was strictly to avoid being sanctioned or

held in contempt, not because of any conflict in his loyalties to

Gibson. Mullis also raised the issue of the motion to quash in

Gibson’s direct appeal. See Gibson, 261 Ga. at 315–16. The habeas

court also observed that Gibson produced no evidence during the

habeas proceedings to enable the court to determine whether the

subpoenas were valid or whether the subpoenaed documents would

have contained valuable and relevant information that could have

been used in defending Gibson at trial. Additionally, Gibson failed

to present any evidence to demonstrate that Mullis withdrew the

subpoenas based on a concern that his position or income as a

Special Assistant Attorney General would be jeopardized, and as

such, this contention was “merely speculative,” particularly since

10
Mullis testified otherwise. The habeas court further concluded that,

although Mullis was working as a Special Assistant Attorney

General handling Department of Transportation cases when he was

also representing Gibson, that was at most a “potential” conflict, and

Gibson was still required to show “an adverse effect” on Mullis’s

representation by virtue of this conflict of interest, a showing Gibson

failed to make. See Cuyler, 446 US at 348–50. For these reasons, the

habeas court denied Gibson’s request for habeas relief.

2. On appeal, Gibson contends that, because Mullis labored

under an actual conflict of interest by representing Gibson while

simultaneously serving as a Special Assistant Attorney General,

Gibson was denied the effective assistance of counsel, and his

convictions should be vacated. Specifically, Gibson claims that

Mullis’s employment as a Special Assistant Attorney General

created a substantial risk that Mullis’s interest in maintaining favor

with the Attorney General would affect his simultaneous

representation of Gibson, and when Mullis’s relationship with the

11
Attorney General’s office jeopardized his duty of loyalty to Gibson,

Mullis prioritized the former by withdrawing the subpoenas he had

served upon analysts from the GBI.

“A criminal defendant in Georgia is constitutionally entitled to

the effective assistance of counsel during his trial, motion for new

trial proceeding, and direct appeal. One component of the right to

the effective assistance of counsel is the right to representation that

is free of actual conflicts of interest.” Huitron v. Toby, ___ Ga. ___

(2026), S25A0124, slip op. at 15–16 (Ga. Feb. 3, 2026) (citing Hall,

310 Ga. at 720 (quotation marks omitted)). In evaluating a criminal

defendant’s claim that “a conflict of interest worked a denial of the

effective assistance of counsel,” Tolbert v. State, 298 Ga. 147, 149–

50 (2015), this Court has consistently applied the framework from

Cuyler and required the defendant to show that “an actual conflict

of interest adversely affected his lawyer’s performance.” 6 Cuyler, 446

—————————————————————
6 See e.g., Huitron, , S25A0124, slip op. at 15–16; Dills v. Weaver, __ Ga.

__ (2026), S25A1367, slip op. at 17 (Ga. Jan. 5, 2026); Adams v. State, 317 Ga.
342, 351 (2023); Hall, 310 Ga. at 721; Moore v. State, 311 Ga. 506, 511 (2021);
Tolbert, 298 Ga. at 149–50; State v. Abernathy, 289 Ga. 603, 604 (2011).
12
US at 348 (holding that, “[i]n order to demonstrate a violation of his

Sixth Amendment rights, a defendant must establish that an actual

conflict of interest adversely affected his lawyer’s performance”). See

also Adams v. State, 317 Ga. 342, 351 (2023) (holding that “an actual

conflict of interest means precisely a conflict that affected counsel’s

performance – as opposed to a mere theoretical division in loyalties”

(cleaned up)).

When we review a habeas court’s decision on a petitioner’s

conflict-of-interest claim, “we accept the court’s factual findings

unless they are clearly erroneous, but we apply the law to those facts

de novo.” Dills v. Weaver, ___ Ga. ___ (2026), S25A1367, slip op. at

17 (Ga. Jan. 5, 2026) (citing Hall, 310 Ga. at 719–20 (quotation

marks omitted)). And, if there is evidence in the record to support

the habeas court’s factual findings, those “factual findings cannot be

found to be clearly erroneous.” Id. (citation omitted). “We must also

yield to the judgment of the habeas court with respect to the

credibility of witnesses who testified at the habeas proceedings.” Id.

13
(citing Humphrey v. Walker, 294 Ga. 855, 860 (2014) (quotation

marks omitted)). “A habeas court’s determination regarding the

presence or absence of an actual conflict of interest is a mixed

question of fact and law, which this Court reviews de novo.” Id.

(cleaned up).

As reflected by the record and the findings of the habeas court,

Mullis began working as a contract public defender in 1982. In 1986,

Mullis was appointed as a Special Assistant Attorney General to

periodically handle Department of Transportation cases. In 1990,

Mullis was appointed to represent Gibson in his criminal trial, and

after Gibson was convicted of murder and armed robbery, Mullis

continued to represent Gibson in his direct appeal. During the

criminal trial, the Attorney General appeared on behalf of several

GBI analysts to whom subpoenas for records had been issued by

Mullis. The Attorney General moved to quash the subpoenas and for

other relief, and Mullis withdrew the subpoenas. At no point during

Mullis’s representation of Gibson did he disclose his appointment as

14
a Special Assistant Attorney General to Gibson and the trial court.

See Gibson, 282 Ga. at 156–58.

Assuming without deciding that these circumstances created a

potential conflict of interest on Mullis’s part, we agree with the

habeas court that Gibson failed to show that the conflict adversely

affected Mullis’s representation of Gibson. See Huitron, slip op. at

17 (concluding that, even if there was a potential conflict of interest,

the defendant failed to show that the conflict “significantly or

adversely” affected counsel’s representation of the defendant). See

also Hall, 310 Ga. at 720 (noting that, to “carry his burden of

proving” that counsel “provided ineffective assistance because

[counsel] had a conflict of interest,” the defendant “must show that

an actual conflict of interest significantly and adversely affected

[counsel’s] representation of [the defendant]” (cleaned up)).

A review of the record and our prior decisions in Gibson’s cases

support the habeas court’s conclusions that, despite any potential

conflict of interest, Mullis diligently represented Gibson at trial and

15
on direct appeal, and Mullis’s separate work as a contract Special

Assistant Attorney General for the Department of Transportation

did not impede or impair his willingness or ability to fulfill his

obligations to professionally and staunchly represent Gibson in his

criminal case. In fact, when this Court considered and denied

Gibson’s application for a certificate of probable cause to appeal the

denial of his first habeas petition in 1999, we concluded—in rejecting

Gibson’s ineffective assistance of counsel claim—that Mullis: (1)

“met with Gibson many times before trial”; (2) “investigated

Gibson’s case” and “possible defenses”; (3) “filed several discovery

motions, including a Brady motion”; (4) “successfully moved for an

independent psychological evaluation”; (5) “filed numerous relevant

pretrial motions,” including motions to suppress and a motion for

change of venue; (6) “interviewed key witnesses”; (7) “made timely

objections at trial”; (8) “invoked Gibson’s youth and his lack of a

family while growing up” and “implored the jury to spare Gibson”

during closing argument; and (9) “elected to present evidence in the

16
sentencing phase of Gibson’s youth, his remorse, and his childhood

without parents.” Gibson, 270 Ga. at 863–66. And, while the better

practice would certainly have been for Mullis to disclose his role as

a Special Assistant Attorney General to Gibson and the trial court

in compliance with OCGA § 45-15-30,7 we cannot say—given the

facts and circumstances presented in this case—that Mullis’s failure

—————————————————————
7 In pertinent part, OCGA § 45-15-30, which was materially the same

during the relevant timeframe as it is today, provides that,
[n]otwithstanding that any attorney at law under independent
contract to the Department of Law has been appointed or
designated either specially or generally as an assistant attorney
general and thus is identified with the State of Georgia as its
representative for cases arising within the scope of that
appointment or designation, representation of a defendant in
criminal proceedings by that assistant attorney general shall not
constitute a conflict of interest if that assistant attorney general
provides written disclosure of such appointment or designation to
the defendant prior to accepting employment by that defendant or,
when a court has appointed an assistant attorney general to
represent an indigent criminal defendant, disclosures to the
defendant and to the court, to be reflected in the record of that
court, such appointment or designation as assistant attorney
general.
See also 1984 Ga. Att’y. Gen. Op. No. U84-27 (directing that Special Assistant
Attorneys General comply with the disclosure requirements of OCGA § 45-15-
30 in ordinary criminal cases and never represent a defendant in a death
penalty case, regardless of whether the defendant might be willing to waive
any potential conflict).
17
to make that disclosure adversely affected his representation of

Gibson.

With respect to the subpoenas at issue, the record supports the

habeas court’s conclusion that Gibson failed to demonstrate that

Mullis withdrew the subpoenas because of any loyalty he felt to the

Attorney General’s office or to forfeit any aspect of Gibson’s defense.

Gibson’s claim that Mullis withdrew the subpoenas because he

wanted to avoid a conflict with the Attorney General’s office, “whose

approval was essential for his job security,” is based purely on

speculation, and we have held that speculation is insufficient to

show an actual conflict of interest. See Adams, 371 Ga. at 355

(determining that a defendant’s speculation that his counsel’s efforts

and strategic choices were the result of a potential conflict of interest

could not establish an actual conflict of interest). See also Mahdi v.

State, 312 Ga. 466, 470 (2021) (concluding that the defendant’s claim

of a conflict of interest was “at best a matter of theory or

speculation,” which was insufficient to show an actual conflict of

18
interest). Moreover, while Gibson submits that Mullis admitted in

his appellate brief to this Court in 1991 that he withdrew the

subpoenas under pressure from the Attorney General’s office, see

Gibson, 261 Ga. at 315, Mullis’s testimony at the habeas hearing

belies that claim, and there is no evidence that Mullis withdrew the

subpoenas to curry favor with the Attorney General. Instead, Mullis

testified at the habeas hearing that he withdrew the subpoenas to

avoid sanctions or being held in contempt by the trial court, not

because of any divided loyalties on his part, and the habeas court

was entitled to credit Mullis’s testimony.

Gibson also contends that the habeas court erroneously based

its denial of Gibson’s habeas petition on the conflict-of-interest

standard set forth in Cuyler and that the appropriate standard to

apply in evaluating Mullis’s conflict of interest is the standard set

forth in Sallie v. State, 269 Ga. 446, 448 (1998) (providing that, when

counsel is laboring under an obvious and impermissible conflict and

the penalty is of vast enormity, there is no need to analyze the

19
adverse effect). However, Gibson offers no compelling reason why

this Court should apply the unique standard articulated in Sallie to

the conflict here, and we see none. See id. at 447–48 (holding that,

where an attorney was simultaneously employed as a defendant’s

trial attorney and “the sole judicial law clerk” in the circuit where

the defendant was being tried for murder, the conflict was “obvious”

and “completely impermissible”—especially given that the

defendant faced the death penalty—and prejudice was presumed).

The decision rendered by this Court in Sallie has been rarely

applied and is limited to its distinct factual circumstances. See

Fogarty v. State, 270 Ga. 609, 610–11 (1999) (noting that, although

we applied the “per se presumption” of prejudice standard in the

“unique situation” present in Sallie, we ordinarily apply the Cuyler

standard and focus on whether “an actual conflict of interest

adversely affected [the] lawyer’s performance”). Although this Court

later applied the Sallie standard in Howerton v. Danenberg, 279 Ga.

861 (2005), the Court did so only “under the unique facts of th[at]

20
case.” Id. at 863 (applying Sallie’s presumption-of-prejudice

standard to circumstances where an attorney had represented a

defendant in a murder trial while also representing the assistant

district attorney who was prosecuting that defendant in a separate

civil lawsuit because that dual representation was “completely

impermissible,” “undermine[d] the adversarial process[,] and

call[ed] into question the reliability of the outcome of proceedings”).

But many of us question whether Howerton was decided correctly.

And, here, based on the record before us, we readily conclude that

the unusual and egregious circumstances warranting the

application of a presumption-of-prejudice standard as set out in

Sallie and Howerton are not present, and as such, we see no reason

to deviate from our application of the Cuyler standard in this case.

See Fogarty, 270 Ga. at 610–11.

Accordingly, as explained above, Cuyler is the appropriate

standard to be applied in evaluating a conflict-of-interest claim like

Gibson’s. See Cuyler, 446 US at 348–50. And, because the habeas

21
court applied the Cuyler standard to conclude that, even if a

potential conflict existed in this case, Gibson failed to meet his

burden to show that Mullis’s representation was “significantly or

adversely” affected by the conflict—a conclusion that is supported

by the record—we conclude that the habeas court did not err in

denying Gibson’s claim for habeas relief. See Huitron, slip op. at 21–

22; Hall, 310 Ga. at 721.

Judgment affirmed. All the Justices concur, except Peterson,
C.J., not participating.