CourtListener 10846037

Testo completo

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official text of the opinion.

In the Supreme Court of Georgia

Decided: February 3, 2026

S25A0124. HUITRON v. TOBY, WARDEN.

MCMILLIAN, Justice.

Alexandro Huitron appeals the denial of his habeas petition

stemming from his convictions for felony murder and other crimes

arising from the death of his three-year-old daughter, Esmerelda

Gomez. 1 Huitron argues that his appellate counsel suffered from an

1 The crimes were committed on May 31, 2010. In June 2011, a Clayton

County grand jury jointly indicted Huitron and his wife, Margarita Gomez, for
malice murder (Count 1), three counts of felony murder (Counts 2-4), four
counts of aggravated battery (Counts 5, 8-10), two counts of aggravated assault
(Counts 6, 11), contributing to the deprivation of a minor (Count 7), and six
counts of cruelty to children (Count 12-17). Gomez was separately indicted for
two additional counts of contributing to the deprivation of a minor. At a joint
jury trial in October and November 2012, Huitron was found guilty on Counts
3, 4, 6, 7, 11, 12, and 15-17. Counts 10 and 14 were nolle prossed during trial;
Huitron was acquitted on the remaining counts. On November 2, 2012, the
trial court sentenced Huitron to serve life in prison without the possibility of
parole for felony murder predicated on aggravated assault (Count 3), a
concurrent term of life in prison without the possibility of parole for felony
murder predicated on contributing to the deprivation of a minor (Count 4), a
consecutive term of 20 years in prison for aggravated assault (Count 11), a
consecutive term of 10 years in prison for cruelty to children (Count 16), and a
actual conflict of interest, and therefore he is entitled to a new direct

appeal with conflict-free counsel. We affirm because the evidence

presented at the habeas hearing supports the habeas court’s finding

that, even if a conflict was present, it did not significantly or

adversely affect Huitron’s appellate counsel’s performance.

1. Huitron and his wife Margarita Gomez were charged and

convicted for Esmerelda’s death. In our 2017 decision affirming their

convictions, we recounted the evidence from the joint trial as follows:

On May 31, 2010, Gomez and Huitron spent the day
at their apartment in Forest Park with their two
daughters, Esmerelda and two-year-old Perla. Joseph,
Gomez’s younger son by another man, did not live with
them. Around 8:00 p.m., Esmerelda suffered a severe
head injury, resulting in a skull fracture and brain and
retinal hemorrhaging. After Appellants called 911,
Esmerelda was taken to Hughes Spalding Children’s

consecutive term of twenty years in prison for cruelty to children (Count 17).
The other convictions were merged for sentencing purposes. Huitron timely
filed a motion for new trial, which was amended through new counsel on
September 4, 2013. Following a hearing, the trial court denied the motion for
new trial, as amended, on December 11, 2015. On appeal, this Court vacated
Huitron’s convictions on Counts 4, 11, and 16 to correct sentencing errors, but
affirmed the remaining convictions. Gomez v. State, 301 Ga. 445 (2017).
Huitron timely filed a petition for habeas relief on June 7, 2021. The habeas
court entered an order denying the habeas petition on August 9, 2024. On
September 10, 2024, Huitron filed an application for a certificate of probable
cause to appeal to this Court, which was granted, and his case was docketed to
this Court’s August 2025 term and submitted for a decision on the briefs.
2
Hospital and later flown to Egleston Hospital, where she
died on June 3.

Gomez and Huitron were interviewed separately
several times by officers from the Forest Park Police
Department, first on the night of Esmerelda’s injuries,
again a few days later, and finally on June 10, when they
each participated in a re-enactment of how they
supposedly found Esmerelda. Each time, a Spanish-
speaking police officer or interpreter was used. Initially,
Gomez and Huitron both said that when Esmerelda was
injured, they were washing dishes or about to start
washing dishes together in their kitchen while the two
girls were playing in the back bedroom. They heard a
scream from one of the girls and ran to the bedroom. In
another version given later by Gomez, Huitron was on the
back patio grilling and she was in the kitchen when they
heard the scream.

Both parents claimed that they found Esmerelda
lying on her back on the floor between a small child’s table
and one of the two beds in the room. According to Gomez,
Esmerelda looked as if she was struggling to speak or get
up, but then she fainted. According to Huitron, Esmerelda
was unconscious and having trouble breathing, with a
small amount of blood on her face. They moved Esmerelda
into the living room, and one or both of the parents
performed CPR while an ambulance was called. Gomez
then carried Esmerelda out to wait for the ambulance.
Both parents claimed that they did not see what caused
Esmerelda’s injuries but hypothesized that she had fallen
while jumping on the bed, because she liked to play on the
bed. Dr. Jordan Greenbaum, who was the medical
director of the Center for Safe and Healthy Children at
Children’s Healthcare of Atlanta and had been called to

3
consult on Esmerelda’s case at Egleston because the
treating doctors suspected child abuse, called Gomez on
June 2 to get a medical history for Esmerelda. The doctor
asked Gomez specifically about a big bruise Esmerelda
had on her abdomen, which Gomez attributed to the child
hitting herself on furniture. Dr. Greenbaum, who noticed
numerous bruises on Esmerelda’s belly, also asked Gomez
if she could think of any injuries she had seen on
Esmerelda’s skin and Gomez said she could recall only
one bruise; she had not noticed any other bruising.

The next day, Officer Karen Henry, who was
assigned to investigate in Esmerelda’s case because she
specialized in child abuse cases, interviewed Gomez.
Gomez said that she never saw any bruises or marks on
Esmerelda, that the only other injury Esmerelda had
suffered was eight days earlier when she fell in the
bathtub, and that Esmerelda had fallen out of bed while
sleeping but had not injured herself. Officer Henry
testified, however, that the pictures she saw of Esmerelda
showed bruises on the side of her abdomen, from her
armpit to her diaper area, that had begun to heal.

When examining Appellants’ apartment about three
hours after the 911 call, investigators found clumps of
dark hair in the bathroom and outside, one to two feet
from the concrete patio. They also found spots of dry blood
on the floor in the front bedroom, in the hallway between
the bathroom and bedrooms, and on the floor in the back
bedroom. The swabbings taken from these spots matched
Esmerelda’s DNA. Several officers testified that the
apartment was very neat, including the kitchen and back
bedroom, and the beds looked like they had recently been
made; although the comforter on one of the beds looked a
little disheveled, that was not the bed next to which the

4
parents said they found Esmerelda.

At trial, four medical experts testified for the State.
Dr. Amita Shroff, who treated Esmerelda at Hughes
Spalding and was qualified as an expert in pediatric
emergency medicine, testified that Esmerelda had a
“Battle’s sign” — bruising on the side of her face, behind
her ear, and tracking down her neck — which indicates a
skull fracture, and fixed and dilated pupils, which
indicate brain damage. She also had blood in her ear and
on her nose, as well as bruises on her nose, chin, back, and
abdomen. The child’s abdomen was distended and she had
an abrasion on her left flank. The doctor testified that
there was no way a fall from a bed could have caused
these injuries; they could be caused only by something
traumatic like a car accident, falling off a 15- to -20 story
building, or having her head slammed onto a hard object
like concrete or a bathtub.

Dr. Rajamani Iyer testified that she was
Esmerelda’s pediatrician, and at all her visits, including
the last visit four weeks before the incident, Esmerelda
seemed normal. A year before trial, the prosecutor had
shown Dr. Iyer an autopsy photograph of Esmerelda’s
head, and Dr. Iyer, who was qualified as an expert in
pediatric medicine, testified based on that photograph
that Esmerelda’s injuries were not consistent with a fall
from the bed and looked like child abuse. Dr. Iyer also
testified that the injuries could have been caused by a
chair, concrete, or other hard object.

Dr. Greenbaum, who was qualified as an expert in
forensic pathology and child abuse medicine, also was
present at the re-enactment. Dr. Greenbaum testified
that Esmerelda had a complex Y-shaped skull fracture

5
and subdural and sub-retinal hemorrhages. She
explained that the sub-retinal hemorrhaging was so
severe that it could only be caused by a few things,
including major head trauma and leukemia (and there
was no evidence that Esmerelda had leukemia). Dr.
Greenbaum further explained that Esmerelda’s injuries
involved high acceleration and deceleration forces of the
sort seen in a high-speed car accident, a fall from three or
more stories, or by a person much bigger than Esmerelda
slamming her head on the floor. Dr. Greenbaum also
testified that Esmerelda had numerous injuries to her
torso and two rib fractures which had begun to heal,
meaning they were at least seven to ten days old. Dr.
Greenbaum concluded from all of this information that
Esmerelda’s injuries were caused by abuse.

The State’s final witness was Dr. Lora Darrisaw, the
GBI medical examiner who performed Esmerelda’s
autopsy and who was qualified as an expert in forensic
pathology and pediatric forensic pathology. Dr. Darrisaw
testified about scattered bruises on the child’s body,
including a collection on the right side of her body and one
on her jaw, which would normally be seen after forceful
grabbing of the head; although it was possible, but not
likely, that the bruise on Esmerelda’s chin was caused by
medical intervention, none of the other bruises could have
been. She added that Esmerelda’s neck had been
“impacted,” meaning it had been hyperextended over a
curved surface or the corner of a hard object. Dr.
Darrisaw, who was also present at the re-enactment by
Appellants, examined the chairs in the bedroom and
concluded that even though they were metal, they were
small, fold-up chairs that could not have caused the
injuries. The doctor testified that Esmerelda’s injuries
could have been caused only by “[h]er head hit[ting]

6
something very, very hard that doesn’t move,” so the
doctor could not see how Esmerelda could have sustained
her injuries by falling on anything in the bedroom; the
only surface that seemed consistent with the injuries was
the concrete patio outside the apartment. Dr. Darrisaw
explained that Esmerelda’s neck injuries and the bleeding
in her eyes indicated that she was moving fast, which
could be caused by her falling from a height greater than
her own or someone picking her up and moving her body
with a lot of force before she impacted a surface. Dr.
Darrisaw also noted that there was a build-up of iron in
Esmerelda’s brain, indicating that she had suffered an
earlier head injury. Dr. Darrisaw ruled the cause of death
to be blunt force trauma and concluded that it was non-
accidental.

Several witnesses testified about the relationship
between Esmerelda and her parents. An officer who
talked to Gomez at the hospital on the night Esmerelda
was taken there testified that Gomez cried briefly when
she was told that Esmerelda might die. Another officer,
who spoke to Gomez later that night, testified that when
he told her that Esmerelda might die, she said she
believed that Esmerelda would be okay, but she started
crying when he told her that she would not be able to take
her other daughter, Perla, home.

Joanna Duarte, one of Gomez’s friends, testified that
Gomez had said Esmerelda was the “product of a rape”
and that Gomez sent the child to Mexico when she was
ten or eleven months old. Around November 2009, when
Esmerelda was about three, Gomez asked Duarte to go
get her and bring her back. Esmerelda had lice when she
returned, and when Duarte gave Esmerelda to Gomez,
she offered to get Gomez a prescription for lice shampoo.

7
Instead, Gomez shaved off all of Esmerelda’s hair to
prevent the lice from spreading to Perla. Duarte testified
that Gomez always showed Perla more affection, saying
that Perla was prettier because she looked like Huitron
and calling Esmerelda ugly. Duarte also observed that
Esmerelda did not seem very attached to her mother and
whenever Esmerelda saw Duarte, she would say she
wanted to go with Duarte. Ana Maldonado, who
sometimes cared for the children, testified to the child
having a similarly strained relationship with Huitron,
who worked in Columbus, Georgia during the week. On
one occasion, Maldonado dropped Esmerelda off with him,
and when he grabbed her, Esmerelda reacted in a way
that indicated she did not want to be left with him.

A caseworker with the Babies Can’t Wait program of
the Georgia Department of Health testified that when she
came to do an evaluation of Gomez’s son, Joseph, in
November 2009, Joseph and Esmerelda looked
malnourished, and Esmerelda was dressed in torn clothes
and looked small for her age and frightened. This
prompted the caseworker to make a referral for
Esmerelda, as well as Joseph, to receive services from
Babies Can’t Wait, but when the caseworker tried to
follow up with Gomez, her contact numbers had been
disconnected and she had moved.

The caseworker was later able to track down Joseph,
discovering that he was living with Maldonado and looked
healthy and happy. Testimony showed that Gomez gave
Joseph, who was born around July 2009 and was not
Huitron’s son, to her friend Duarte’s sister around
October 2009. The sister cared for Joseph for about five
months, during which time Gomez did not visit or provide
any money for her child. The sister eventually returned

8
Joseph to Gomez because she had four kids of her own and
was having money problems. On March 8, 2010, Gomez
gave Joseph to Maldonado, and Gomez signed a notarized
agreement that she would leave Joseph in Maldonado’s
custody permanently. Gomez told Maldonado that Joseph
was sick and she could not take care of him. Maldonado
also understood that Huitron did not want Joseph in his
home.

Gomez and Huitron did not testify at trial or call any
witnesses. The defense theory for both Appellants was
that Esmerelda had been injured in an accident. The jury
rejected that theory and found Appellants guilty of felony
murder and other charges.

Gomez v. State, 301 Ga. 445, 446–50 (2017) (footnotes omitted).

After this Court affirmed his convictions, 2 Huitron timely filed

2 On appeal, Huitron argued that the evidence was constitutionally
insufficient, that a new trial was required because he was required to share an
interpreter with Gomez, that the convictions for aggravated assault and first
and second degree cruelty to children were mutually exclusive, and that he was
entitled to a new trial based on a statement that Gomez made at sentencing,
which Huitron claimed was “newly discovered evidence.” See Gomez, 301 Ga.
at 445. Huitron also asserted that trial counsel was ineffective for the following
reasons: (1) failing to present experts to rebut the State’s four medical experts,
(2) failing to object to the testimony of two of the State’s expert witnesses, (3)
failing to ensure that Huitron had a separate interpreter; (4) failing to ask for
a jury instruction about the interpreters, (5) failing to object to testimony from
a witness about Huitron’s relationship with Gomez’s son, (6) failing to move to
sever the trial, (7) withdrawing a previous request for a charge on involuntary
manslaughter, and (8) failing to object to three aspects of the testimony by the
State’s experts about Esmerelda’s injuries. See id. Gomez also asserted several
different claims. See id. at 459-61. Although we corrected a sentencing error,
we otherwise rejected Huitron’s claims and affirmed his convictions and
sentences. See id.
9
a petition for habeas corpus, asserting in part that John Kraus, his

appellate counsel, labored under a conflict of interest because he

worked for the same public defender’s office that represented

Huitron’s co-defendant, Gomez, at trial. In Huitron’s view, that

meant that Kraus could not assert a claim on appeal that trial

counsel was ineffective for failing to argue that Gomez was solely

responsible for Esmerelda’s death and could not call Gomez as a

witness at the motion-for-new-trial hearing to support that claim of

ineffective trial counsel.

At the habeas hearing, Kraus testified that he was a public

defender with the Clayton County Public Defender’s Office when he

represented Huitron at his motion for new trial and on direct appeal.

Kraus became concerned about a potential conflict in his

representation of Huitron, since the Clayton County Public

Defender’s Office had represented Gomez at their joint trial. Kraus

raised the conflict issue with his supervisor, who told him to remain

Huitron’s appellate attorney. Kraus did not mention his conflict

concerns to the trial court or the prosecutors on the case.

10
When asked at the habeas hearing what his concerns were,

Kraus testified that it was his understanding that any attorney who

works in the same office as a trial attorney “is basically deemed,

under the conflict law rules and regulations laws, to be the same as

– as representing the codefendant – or as representing the

defendant.” Kraus also testified that he “likely … discussed the

Gomez case at the time” of the trial with Gomez’s trial attorney,

Kevin Schumaker. Schumaker confirmed that he and Kraus “spoke

daily” about the case during the trial and that Kraus later discussed

the possible conflict concerns he had with him.

According to Huitron, this conflict prevented Kraus from

“question[ing] Margarita Gomez about her culpability at [the motion

for new] trial, or to hold a hearing where she might be questioned to

determine the source of Esmerelda’s injuries.” In particular, Huitron

points to a statement Gomez made at sentencing: “Alejandro, he’s a

good father. He was almost not at the house, so he didn’t see. I did

not see what happened. They don’t have proof. They don’t have any

witness that saw what happened.” Huitron argues that without this

11
conflict, Kraus would have been able to investigate further into this

statement rather than just presenting it as newly discovered

evidence. Kraus testified that the conflict “hamstrung me in several

ways. For instance, … I obviously could not talk to [Gomez] about

her statement [at sentencing]. That was for all kinds of reasons and,

frankly, had I been able to delve into that further, I would have

actually been attacking [her trial attorney]’s representation at the

sentencing.” Because of this alleged conflict, Kraus said that he

could only raise the statement by Gomez on appeal as “newly

discovered evidence” which he believed was a very weak claim.

Gomez also testified at the habeas hearing. She said that

Huitron did not kill their child and that she knows this because

“[she] was there.” When asked what had happened, Gomez

recounted that a week before their child’s death, Gomez dropped

their child while bathing her, which caused her to hit her head hard

against the bathtub. 3 Following that, “she was not acting normal.”

3 Gomez told a similar story when she was interviewed by law
enforcement officers after Esmerelda’s death.
12
After recounting this explanation of what happened, Gomez said, “I

would say that … it’s my fault … I’m sorry.” Gomez went on to say

that if someone had approached her about testifying about the

bathroom incident and told her that it would cause the State to drop

their charges against Huitron, she would have done so. According to

her appellate counsel, who also testified at the habeas hearing,

Gomez consistently claimed that Esmerelda’s death resulted from

an accident on her part and that Gomez never, even privately,

admitted to intentionally killing her child.

After the hearing, the habeas court denied Huitron’s habeas

petition, concluding that Huitron “failed to establish an actual

conflict of interest or that any conflict affected appellate counsel’s

performance.” The court reasoned that the Clayton County Public

Defender’s Office never simultaneously represented Huitron and

Gomez and that Huitron’s trial and appellate counsel had no conflict

because Kraus was a public defender and Huitron’s trial counsel was

privately retained. Further, Kraus called and questioned both

Huitron’s and Gomez’s trial counsel at the motion for new trial

13
hearing despite his alleged concerns about a conflict and raised eight

ineffective assistance of counsel claims against Huitron’s trial

counsel on direct appeal. The court also found that the record

showed that Kraus aggressively pursued these claims.

And the habeas court determined that “Kraus could have

raised a claim that Gomez was culpable by alleging ineffective

assistance against [Huitron’s] trial counsel – a retained attorney not

employed by the public defender’s office.” The court thus concluded,

alternatively, that, “even assuming a [potential] conflict existed

because of Kraus’ representation of [Huitron], [he] cannot show that

such a conflict ‘significantly and adversely affected counsel’s

representation of him.’”

2. Huitron contends that he should be permitted to have a new

direct appeal with conflict-free counsel because his appellate counsel

“suffered from a conflict of interest that prevented him from

investigating whether Margarita Gomez committed the murder, or

calling her to testify to what actually occurred in this case.”

Specifically, he claims that but for the conflict, his appellate counsel

14
would have asserted an ineffective assistance of counsel claim based

on failing to raise the defense that Gomez solely committed the

murder and that appellate counsel should have called Gomez as a

witness to support that claim. We disagree.

“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.” Hall v. Jackson, 310 Ga. 714,

720 (2021) (cleaned up). To demonstrate ineffective assistance based

on an actual conflict of interest, Huitron is “not required to prove

that if [appellate counsel] had raised those claims, they would have

had a reasonable probability of success;” he has the burden only to

show that an “actual conflict of interest … significantly and

adversely affected” Kraus’s representation of Huitron. Id. at 723. “A

potential conflict, however, is insufficient to impugn a criminal

conviction.” Id. at 721 (citation and punctuation omitted; emphasis

in original). Instead, “for purposes of evaluating an ineffective

15
assistance claim, an actual conflict of interest means precisely a

conflict that affected counsel’s performance – as opposed to a mere

theoretical division of loyalties.” Adams v. State, 317 Ga. 342, 351

(2023) (cleaned up; emphasis in original). See also Dills v. Weaver,

S25A1367, slip op. at 18 (2026) (“When evaluating a claim of

ineffective assistance of counsel based on a conflict of interest, the

critical question is whether the conflict significantly affected the

representation, not whether it affected the outcome of the

underlying proceedings.” (cleaned up)). “The conflict must be

palpable and have a substantial basis in fact.” Hall, 310 Ga. at 721

(punctuation omitted; quoting Lamb v. State, 267 Ga. 41, 42 (1996)).

“When reviewing a habeas court’s decision on a defendant’s

attorney 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.” Id. at 719–20. “A habeas court’s factual findings

cannot be found to be clearly erroneous if there is evidence in the

record to support such findings.” Smith v. Magnuson, 297 Ga. 210,

212 (2015).

16
Here, even assuming that Huitron’s appellate counsel had a

potential conflict of interest, we agree with the habeas court’s

conclusion that any potential conflict did not significantly or

adversely affect Kraus’s representation of Huitron. While Kraus

claimed that the conflict “hamstrung [him] in several ways,”

including not being able to “talk to [Gomez] about her statement,”

and that he was reticent about “attack[ing] somebody in [Kraus’s]

own office,” the habeas-court record belies those assertions. See

Tolbert v. State, 298 Ga. 147, 152 (2015) (“The trier of fact is not

obligated to believe a witness even if the testimony is uncontradicted

and may accept or reject any portion of the testimony.” (cleaned up)).

Kraus questioned Schumaker extensively at the motion for new trial

hearing. Moreover, Kraus raised eight ineffective assistance of

counsel claims against Huitron’s trial counsel, and nothing in the

record supports why Kraus could not have asserted a ninth

ineffectiveness claim based on the failure to raise the defense that

Gomez was solely responsible for the murder.

It is also unclear what benefit Huitron claims would have been

17
gained by having Gomez testify. Huitron argues generally that, if

not for the conflict, Kraus would have brought a claim that trial

counsel was ineffective for not blaming Gomez enough at trial. But

Huitron has not explained why Kraus needed Gomez’s testimony to

support that claim, because Huitron has not identified what specific

deficiency of trial counsel could have been alleged in that claim that

could be proven or supported by Gomez’s testimony. The forgone

claim could not have been that trial counsel should have called

Gomez as a witness at trial: Gomez was a co-defendant, so she could

not have been forced to testify. If not that, then what else should

trial counsel have done differently? And how would Gomez’s

testimony have shown that trial counsel was deficient (and that

Huitron was prejudiced)? Huitron does not say. Put simply, Huitron

has not drawn a connection between appellate counsel’s being

‘hamstrung’ by not being able to call Gomez and a specific ineffective

assistance claim that appellate counsel was forced to forgo. And that

is especially so since both Schumaker and Huitron’s trial counsel

“said that their main defense strategy at trial was to argue that the

18
cause of Esmerelda’s injuries was an accident, and, to some extent,

to try to deflect blame onto their client’s co-defendant.” Gomez, 301

Ga. at 451–52.

Moreover, at the habeas hearing, Gomez testified to a similar

story that she told before trial – that Esmerelda was injured by

accident in the bathroom, and her appellate counsel testified that at

no point did Gomez admit that she committed the murder. There is

no evidence that Gomez would have admitted killing Esmerelda

intentionally if called at the motion for new trial hearing; to the

contrary, the evidence presented at the habeas hearing was that she

had never, even privately, admitted killing Esmerelda intentionally

and only admitted “fault” based on the bathroom incident. Thus,

Huitron has not shown how calling Gomez as a witness would have

furthered the ineffective assistance of counsel claim such that the

failure to call her as a witness did not significantly and adversely

affect Kraus’s ability to bring the ineffectiveness claim. See Burger

v. Kemp, 483 US 776, 784–85 (1987) (affirming district court’s

conclusion that a conflict did not cause the lawyer to forgo a “lesser

19
culpability argument” as appellant counsel’s decision to “forego [sic]

[a lesser culpability argument] has a sound strategic basis” because

“the process of winnowing out weaker claims on appeal and focusing

on those more likely to prevail, far from being evidence of

incompetence, is the hallmark of effective appellate advocacy.”); cf.

State v. Abernathy, 289 Ga. 603, 604-05 (2011) (“A significant effect

on the representation may be found, for example, where counsel is

shown to have refrained from raising a potentially meritorious issue

due to the conflict.” (emphasis added)).

Furthermore, even assuming that Kraus was precluded from

calling Gomez as a witness because she was a former client, Kraus

did try to cast blame on Gomez without having her testify. He

argued at the motion for new trial hearing that Gomez was an

“exculpatory witness” due to the statement she made at sentencing

that it was “[her] fault.”. Additionally, the record shows that Kraus,

at the motion for new trial hearing, acknowledged that there was

evidence that “showed Ms. Gomez was more apt to have been the

perpetrator than Mr. Huitron.” And while he did not explicitly argue

20
that Gomez killed Esmerelda, Kraus also pointed out a lack of

“congruity of intent” between Huitron and Gomez, as Huitron “was

totally okay with the child” while Gomez was the one who did not

like the child. This rebuts Kraus’s testimony that he felt

“hamstrung” in casting blame on Gomez due to any conflict based on

his loyalty to Gomez as a former client. To the contrary, the evidence

supports the habeas court’s conclusion that the potential conflict did

not compromise Kraus’s representation. See Abernathy, 289 Ga. at

605 (concluding that there was no actual conflict where “the trial

court expressly noted the absence of any evidence that the conflict

‘colored counsel’s actions during the trial’… Simply put, ‘[the

appellant] has not shown in this case how his attorney’s conflict

caused divided loyalties [or] compromised his attorney’s

representation of him.’”).

Because the habeas court’s findings – that Kraus was not

precluded by any potential conflict from asserting an ineffective

assistance claim based on the defense that Gomez was solely

responsible for the murder – are supported by the record, we

21
conclude the trial court was correct that the representation was not

significantly or adversely affected by the potential conflict. See

Williams v. State, 302 Ga. 404, 412 (2017) (no actual conflict of

interest where the record did not indicate “that Appellant’s counsel

bypassed any meritorious defense… or that counsel’s ability to cross-

examine [the co-indictee] was constrained in any way” but rather

that “Appellant’s counsel conducted a vigorous cross-examination”).

Cf. Dills, S25A1367, slip op. at 27 (concluding that trial counsel had

an actual conflict of interest that adversely affected his

representation because counsel represented both defendants before

trial and learned that the co-defendant may have been solely

responsible for the crime, but declined to assert that defense at trial,

instead relying on a defense that was not supported by the evidence).

Judgment affirmed. All the Justices concur.