Nicholas Bernard Acklin v. Commissioner, Alabama Department of Corrections

11th Cir.12/12/2024

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USCA11 Case: 22-13599 Document: 44-1 Date Filed: 12/12/2024 Page: 1 of 64

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 22-13599
____________________

NICHOLAS BERNARD ACKLIN,
Petitioner-Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF CORREC-
TIONS,
WARDEN, HOLMAN CORRECTIONAL FACILITY,

Respondents-Appellees.

____________________

Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 5:18-cv-00885-LSC
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2 Opinion of the Court 22-13599

____________________

Before WILSON, GRANT, and LUCK, Circuit Judges.
LUCK, Circuit Judge:
With the help of two accomplices, Nicholas Acklin held hos-
tage seven friends gathered at a Huntsville, Alabama apartment:
Ashley Rutherford, Michelle Hayden, Lamar Hemphill, Johnny
Couch, Michael Beaudette, Brian Carter, and Mike Skirchak. After
torturing and taunting them at gunpoint for two hours, Acklin shot
and killed Mr. Hemphill, Mr. Couch, and Mr. Beaudette. He at-
tempted to murder Mr. Rutherford and Ms. Hayden, too, shooting
Mr. Rutherford in the head and Ms. Hayden in the head, arm, and
abdomen. And one of Acklin’s accomplices, following Acklin’s lead
in firing the first shot, fatally shot Mr. Carter.
Acklin was convicted and sentenced to death for the mur-
ders. He now appeals the denial of his petition for a writ of habeas
corpus under 28 U.S.C. section 2254, claiming that, under Cuyler v.
Sullivan, 446 U.S. 335 (1980), a financial conflict of interest denied
him his Sixth Amendment right to effective assistance of trial coun-
sel. After careful review of the briefs and the record, and with the
benefit of oral argument, we affirm.
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I. FACTUAL BACKGROUND AND
PROCEDURAL HISTORY
A. The Murders
The night of September 25, 1996, started out as a quiet one
at Mr. Rutherford’s apartment, a 13’ by 18’ room in his elderly
grandmother’s house that was accessible through the garage.
Mr. Rutherford’s fiancée, Ms. Hayden, was at the apartment await-
ing his return from work. She was joined by Mr. Carter and
Mr. Hemphill, and they passed the time watching television.
Mr. Skirchak and Mr. Couch stopped by the apartment too, at
around 10 P.M., because they were looking for Mr. Beaudette and
saw his car parked out front. But they decided to leave around
10:05 P.M., after seeing that Mr. Beaudette wasn’t in the apart-
ment.
As Mr. Skirchak and Mr. Couch tried to leave, they were
confronted at the door by three armed men—Acklin, Joey Wilson,
and Corey Johnson. The gunmen had four firearms that they’d end
up sharing with one another throughout the night. A .357 mag-
num revolver. A Ruger 9mm pistol. And two Lorcin 9mm pistols.
With guns in hand, Acklin, Wilson, and Johnson forced
Mr. Skirchak and Mr. Couch back into the apartment. Ms. Hayden
asked the three gunmen to leave, but they forced themselves inside
the apartment anyway. When they did, Johnson pushed Ms. Hay-
den into a chair by her throat, threatening that he’d shoot her if she
didn’t “keep [her] mouth shut.” As Mr. Beaudette entered the
apartment minutes later, Acklin pushed him down, sat on top of
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4 Opinion of the Court 22-13599

him, shoved the .357 magnum under his chin, and demanded eve-
rything in his pockets.
Acklin, Wilson, and Johnson started interrogating everyone
in Mr. Rutherford’s apartment about “who filled out the warrant.”
They were referring to the fact that, about a week earlier, the
Huntsville Police Department questioned Wilson over a complaint
that he and Johnson had stolen a cell phone from the same apart-
ment. Acklin, Wilson, and Johnson wanted revenge against the
person who made the complaint. But nobody in the apartment
knew anything about a “warrant.” So, not getting the answers that
they wanted, Acklin, Wilson, and Johnson became more violent.
They kicked, slapped, and spat on Mr. Beaudette, Mr. Carter,
Mr. Hemphill, Mr. Skirchak, and Mr. Couch, over and over and
over again. And Johnson beat Mr. Hemphill and Mr. Carter in the
head with a Jack Daniels whiskey bottle.
In the midst of the chaos, Acklin took Ms. Hayden outside
while armed with one of the guns, telling his accomplices that he
would watch for Mr. Rutherford to show up. He started touching
Ms. Hayden’s breasts as she pleaded for him to “please stop.” In-
stead of stopping, Acklin got frustrated and demanded that
Ms. Hayden take off her pants. That’s when Mr. Rutherford’s car
pulled up.
Acklin stuck the gun to Ms. Hayden’s back and forced her
inside, ordering her to sit by Mr. Beaudette. Meanwhile, Wilson
and Johnson took care of Mr. Rutherford. Johnson lifted his shirt
to threaten Mr. Rutherford with the .357 magnum, and Wilson put
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22-13599 Opinion of the Court 5

Mr. Rutherford in a headlock to force him inside the apartment,
slamming him into a loveseat.
Wilson and Acklin started beating, slapping, and spitting on
Mr. Rutherford like they did with the others, asking “did [he] file
the warrant.” But they still weren’t getting the answers that they
wanted, so Acklin took the .357 magnum and shoved its barrel
down Mr. Rutherford’s throat until he gagged. Wilson turned his
attention to Mr. Couch, grabbing him by the ponytail, slamming
his head into a dresser, stomping on his head and chest until he was
almost unconscious, and cutting off his ponytail with scissors. Wil-
son also put his gun on a table and dared the victims “to go ahead
and grab it” if they “were bad enough to grab it.” And Acklin, Wil-
son, and Johnson had all of the men take their shoes and pants off
to sit with their underwear exposed.
Acklin turned his attention back to Ms. Hayden. When he
went outside to steal a stereo from Mr. Carter’s car, he demanded
that Ms. Hayden go with him. He told her that she had “[o]ne
more chance for [her] to drop [her] pants” or, if she didn’t, to “take
[her] chances.” Ms. Hayden refused and went back inside after
Acklin took the stereo and a knife from Mr. Carter’s car. Acklin
then followed her back inside, lying to Mr. Rutherford that
Ms. Hayden—his fiancée—had just performed oral sex on him.
Acklin also threw Mr. Carter’s knife at him, hitting Mr. Carter’s leg
before falling on the floor, and proclaimed to Wilson, “look, he has
a knife!”
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As midnight neared, still without the answers they wanted
about who filled out the “warrant,” Acklin and Wilson started
rounding up the victims’ driver’s licenses, money, and whatever
else they had in their pockets. Acklin and Wilson were getting
more aggressive. As Johnson tried to calm them down, the three
gunmen started getting frustrated with one another, yelling back
and forth that one of them needed to go start their car outside.
That task ended up falling to Acklin, so he went outside to start the
car while Wilson stayed inside pointing his gun in Mr. Rutherford’s
face, threatening “you better answer me now, Ashley, if you want
to live throughout the night.”
When Acklin came back inside from starting the car, he was
carrying the two Lorcins—one in his hand, one in his waistband.
Wilson was still interrogating Mr. Rutherford. But Acklin decided
that he had heard enough. Proclaiming “f-ck it,” he raised one of
the Lorcins to the back of Mr. Rutherford’s head. Then he pulled
the trigger.
Mr. Skirchak escaped out the apartment’s back door. But,
undeterred, Acklin proceeded to methodically shoot the others,
one by one, in front of each other. Acklin shot Mr. Hemphill in the
head. He shot Mr. Couch twice in the head. He shot
Mr. Beaudette once in the head and once in the upper leg. He shot
Ms. Hayden in the head, arm, and abdomen. And before Acklin
could shoot Mr. Carter too, Wilson shot Mr. Carter six times in the
neck and chest. Having gotten their revenge, Acklin, Wilson, and
Johnson fled the apartment.
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In a pool of his own blood, Mr. Rutherford pretended he was
dead until the gunmen left. Ms. Hayden laid on the floor nearby
and she, clinging to life, had a shattered elbow and jaw. Mr. Ruth-
erford was trying to stop her bleeding when his elderly aunt, who
shared the house, showed up. With his aunt’s help, Mr. Rutherford
called 911. First responders arrived around 12:20 A.M. to find
Mr. Rutherford trying to save his fiancée, Mr. Beaudette,
Mr. Carter, and Mr. Couch already dead, and Mr. Hemphill barely
alive. Mr. Hemphill was taken away in an ambulance but did not
survive.
Panic stricken, Mr. Rutherford could only give officers Wil-
son’s name as the person responsible for the carnage. Officers
acted quickly by putting out a be-on-the-lookout alert for Wilson,
and they found him driving his car—with Johnson—around
12:25 A.M. The .357 magnum was under Johnson’s seat.
Mr. Skirchak gave the officers Acklin’s name after finding
help and returning to the apartment. Officers went to Acklin’s
home just before 2:00 A.M. and arrested him. During a search of
the home, they found the two Lorcins, the Ruger, and
Mr. Beaudette’s driver’s license.
An Alabama grand jury indicted Acklin after his arrest,
charging him with capital murder of two or more persons
(Mr. Hemphill, Mr. Beaudette, Mr. Couch, and Mr. Carter), in vio-
lation of Alabama Code section 13A-5-40(a)(10). The indictment
also charged Acklin with the attempted murders of Mr. Rutherford
and Ms. Hayden, in violation of section 13A-4-2.
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8 Opinion of the Court 22-13599

B. The Lead-Up to Trial
1. Trial Counsel’s Preparation and Compensation
On September 30, 1996, four days after Acklin’s arrest, his
parents—Velma Acklin Evans and Theodis “Ted” Acklin—met
1
with attorney Behrouz Rahmati about representing their son.
Mr. Rahmati agreed to represent Acklin.
To make it official, Ms. Evans, but not Ted, signed Mr. Rah-
mati’s retainer agreement. The retainer agreement provided that
Ms. Evans would pay a $25,000 retainer fee—due in full before
Mr. Rahmati completed any work on the case—that Mr. Rahmati
could bill against to pay his $150 hourly fee. If Mr. Rahmati’s
hourly fees ended up exceeding the retainer, Ms. Evans agreed to
pay the excess, too. And Ms. Evans agreed to pay the costs of rep-
resentation as they were incurred, including court filing and tran-
script fees.
Despite the terms of the retainer agreement, Ms. Evans
didn’t pay Mr. Rahmati anything during the September 30 meeting
because she didn’t have the money. Ted didn’t pay Mr. Rahmati
anything, either. Nevertheless, Mr. Rahmati hit the ground run-
ning on Acklin’s case the very next day by drafting motions for dis-
covery and a preliminary hearing. He was assisted by Kevin Gray,

1
Because they share the same last name, we refer to Acklin’s father as Ted and
Acklin’s brother, Steve Acklin, as Steve.
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a two-year attorney who had worked with Mr. Rahmati before and
joined Acklin’s defense as co-counsel.
Together, Mr. Rahmati and Mr. Gray represented Acklin
over the next two years, through his October 19, 1998, trial. They
attended every court hearing over these two years. They also re-
searched case law and submitted a variety of motions aimed at aid-
ing Acklin’s trial chances or avoiding a trial altogether—including
discovery motions, motions to suppress evidence, motions regard-
ing jury selection, a motion to exclude the victims’ autopsy photos,
motions to dismiss the indictment, and a motion for change of
venue. To support the venue motion, trial counsel subpoenaed lo-
cal media outlets for records that could show how pretrial publicity
affected the case.
Besides this motion practice, trial counsel investigated evi-
dentiary leads for trial and the penalty phase. Early on in their in-
vestigation, for example, trial counsel sought a mental health ex-
amination of Acklin that could shed light on his competency to
stand trial and his mental state during the murders. Dr. Lawrence
Maier, a psychologist and forensic examiner, evaluated Acklin on
March 14, 1997. He summarized his findings in a report, explaining
that Acklin had been abusing marijuana and alcohol for years be-
fore the murders. This substance abuse “was heavy prior to and
up to the time of the crimes.” But, Dr. Maier concluded, Acklin
was competent and his ability to conform his conduct to the law
on the night of the murders was not “significantly impaired” by the
substance abuse. Mr. Rahmati reviewed the report and spoke with
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Dr. Maier about his findings before determining they wouldn’t aid
Acklin’s defense.
Dr. Maier wasn’t the only doctor Mr. Rahmati consulted.
Because Ms. Evans told Mr. Rahmati that Acklin was diabetic, he
requested Acklin’s medical records and consulted a potential expert
witness, Dr. Taylor Noggle. Hoping to use the evidence of Acklin’s
diabetes to show he lacked the intent to murder or as mitigation,
Mr. Rahmati asked Dr. Noggle about the combined effect of the
diabetes and substance abuse on Acklin’s mental state during the
murders. Mr. Rahmati ultimately determined Dr. Noggle’s opin-
ion wouldn’t be helpful for trial or the penalty phase.
In addition to Acklin’s substance abuse and diabetes, there
were other evidentiary leads trial counsel honed in on. Trial coun-
sel reviewed the state’s discovery and subpoenaed the state’s wit-
nesses. They separately reviewed the evidence presented at Wil-
son’s trial, which Mr. Gray had attended. And they conferred with
Acklin and his parents many times about character witnesses that
could be called during the penalty phase. Trial counsel interviewed
these witnesses either at their office or over the phone.
Over these two years of motion practice and preparing for
Acklin’s trial, neither Ms. Evans nor Ted paid trial counsel’s full re-
tainer or anything close to it. Ms. Evans made her first and largest
payment to trial counsel—$500—on October 25, 1996. She fol-
lowed it up with twelve smaller payments: A $200 payment on
November 21, 1996. A $200 payment on February 14, 1997. A $150
payment on March 14, 1997, and another $150 on April 24, 1997. A
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$100 payment on August 1, 1997. A $125 payment on October 9,
1997. A $100 payment on December 8, 1997. A $125 payment on
January 21, 1998. Another $100 on March 2, 1998, and May 22,
1998. A $125 payment on July 15, 1998. And, as her last payment,
$150 on September 11, 1998.
Ted, for his part, paid trial counsel three times across the
two years they worked on Acklin’s case. He paid $700 on
March 17, 1998, $2,000 on September 28, 1998, and $200 on Octo-
ber 5, 1998.
In all, Ms. Evans’s and Ted’s payments totaled $5,025, about
a fifth of the $25,000 retainer. Because trial counsel’s time spent
working on the case exceeded what the retainer contemplated,
more than $50,000 in unpaid fees and costs were still owed by Oc-
tober 17, 1998—two days before Acklin’s trial.
2. Ms. Evans’s Domestic Abuse Allegations
Two days before trial, on October 17, Mr. Rahmati met
again with Ms. Evans to discuss the case. At the meeting, Ms. Ev-
ans told Mr. Rahmati—for the first time—that before she and Ted
divorced, when Acklin was eleven or twelve years old, Ted was
physically and verbally abusive to her, Acklin, and his brothers.
Specifically, Ms. Evans told Mr. Rahmati that “there was lots of
fights” in the household, Ted once pushed Ms. Evans out of a first-
or second-story window, and about how, “if [Ted] was mad at the
kids, he would hold them down, put a gun to them, threaten to
shoot them, [and] threaten to kill them.”
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After the meeting with Ms. Evans, Mr. Rahmati met with
Ted to confirm if the allegations were true and, if they were, to ask
him to testify about the abuse. Ted was outraged by the allegations
and denied that he ever abused his family. Mr. Rahmati pleaded
with Ted, “Look, this is critical. You can help your son, possibly,
possibly. We’ve got a stacked deck against us as it is.”
Rejecting Mr. Rahmati’s plea, Ted got up and responded, “‘I
can’t believe they are doing this,’ or ‘[t]hey are going there,’ some-
thing to that effect.” “You tell Nick if he wants to go down this
road, I’m done with him” and “done helping with this case,” Ted
continued. Ted then stormed out of Mr. Rahmati’s office as
Mr. Rahmati promised, “[Ted], I will do whatever I need to, to get
you to this sentencing phase; I just want you to know that.”
After Ted left Mr. Rahmati’s office, Mr. Rahmati visited
Acklin to ask if the abuse allegations were true. Mr. Rahmati told
Acklin everything that Ms. Evans alleged and everything that Ted
said when confronted about the allegations. Unlike Ted, Acklin
confirmed Ms. Evans was telling the truth and that Ted was an abu-
sive father. Mr. Rahmati explained to Acklin that the domestic
abuse evidence was “important” because a jury might find it miti-
gating and he’d need to present it, even if that meant compelling
Ted to testify. But Acklin wouldn’t permit Mr. Rahmati to sub-
poena Ted or present evidence about the abuse. Mr. Rahmati in-
sisted, but he couldn’t get Acklin to change his mind. “That didn’t
cause me to be here. I don’t want to ruin their lives or have any-
thing like this to come out on them,” Acklin told Mr. Rahmati.
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Mr. Rahmati asked Acklin to sign a written acknowledg-
ment that he refused to allow Mr. Rahmati to introduce the domes-
tic abuse evidence. The acknowledgment memorialized that
Mr. Rahmati advised Acklin that the domestic abuse evidence
could help his case as mitigating evidence and that Mr. Rahmati
was prepared to offer it, but Acklin refused:
I, Nicholas Bernard Acklin, hereby acknowledge that
my attorneys, Behrouz K. Rahmati and Kevin C.
Gray, have consulted with me and advised me regard-
ing certain potentially mitigating evidence, which
they are prepared to oﬀer on my behalf. This mitigat-
ing evidence consists of testimony from my mother
and possibly other siblings and family members that I
suﬀered some degree of abusive behavior during my
formative years at the hands of my father. . . . My
above-mentioned attorneys have advised me that this
evidence could possibly be considered by a jury in
mitigation . . . . I have expressly forbidden them to
mention or present such evidence or argue such evi-
dence during any part of the trial proceeding, includ-
ing either the guilt or penalty phase.

Acklin signed the acknowledgment.
C. Trial and Sentence
Trial began two days later with jury selection. After hearing
two days of testimony, the jury found Acklin guilty of capital mur-
der (of Mr. Hemphill, Mr. Beaudette, Mr. Couch, and Mr. Carter)
and attempted murder (of Mr. Rutherford and Ms. Hayden).
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1. The Penalty Phase
Then the penalty phase started. The state offered testimony
from family members of the four deceased victims: Larry
Hemphill, who told the jury “nobody deserve[d] to die” like his
son, Lamar; Nancy DeMichele, who described how losing her son,
Mr. Couch, “devastated” and “buried” her; Clyde Carter, who tes-
tified that he couldn’t sleep because he’d wait for his son, Brian, to
walk in the house at night; and Nomi Donalson, who said that she
cried every night at the loss of her son, Mr. Beaudette.
Trial counsel presented eight witnesses to testify for Acklin.
The first four were members of the community who knew Acklin:
Walter Rice, who was a security officer at Acklin’s former em-
ployer, told the jury that Acklin had a “nice personality” and got
along with his coworkers; Alphonso Holden, who worked for a lo-
cal ministry and knew Acklin for about fifteen years, testified that
he never knew Acklin to be violent and that “he ha[d] shown a lot
of remorse” for his crimes; Robert Rogers, a pastor who knew Ack-
lin “all of his life,” said that he was surprised by Acklin’s crimes,
prayed for everyone involved, and “plead[ed] for mercy”; and
McKinnley Jones, another pastor who also knew Acklin “[a]ll of his
life,” testified that he was also surprised by Acklin’s crimes because
he knew Acklin to be nonviolent.
The next four witnesses were Acklin’s family members. The
first was Acklin’s aunt, Jo Anne Belt, who told the jury that the
murders were “[o]ut of character” for Acklin because he was
“peaceful.”
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Ms. Belt was followed by Ted. Ted testified that he was
preaching in Mobile when Ms. Evans called him about Acklin’s ar-
rest. Ms. Evans’s news made him “not only . . . traumatized for
[Acklin] and [the] family, but as a minister [he] was traumatized for
the family members of the deceased.” When Acklin was growing
up, Ted explained, he was a “typical” but “quiet” teenager; “[h]e
didn’t give [his parents] any problems, easily disciplined.” But Ack-
lin “was never disrespectful to anyone,” so Ted and Ms. Evans
“didn’t have that problem.” During Acklin’s childhood, Ted was
“an overly protective parent” who just “wanted to be a good fa-
ther” and “to protect [his] children.”
Speaking directly to the victims’ families, Ted assured them
that he was “sorry” because he “love[d his] child and [he] kn[e]w
[they] love[d their] children,” too. He had been praying for the
families—he “ask[ed] G-d to help [them] to forgive [his] son” just
like he “had to forgive” his son. Ted wondered “where did [he] go
wrong” as a parent because Acklin “was raised in a G-d-fearing
home,” he tried to maintain the close father-son relationship that
his father denied him, and he regularly took Acklin to church. For
example, about a week before the murders, Ted took Acklin and
Acklin’s children to the church he pastored, encouraging them to
visit more often. Acklin hadn’t attended the church for “maybe a
year” and that concerned Ted. As for how often Ted saw Acklin
after the murders, Ted would visit Acklin at the prison “every other
Sunday” “if not every Sunday.” Ted also spoke with Acklin “every
week,” and Acklin would write to Ted about how he “strayed from
[Ted’s] teaching.”
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To wrap up his testimony, Ted acknowledged that the case
was “difficult” for the jury but he “pray[ed]” they would “have
mercy,” that they would “empathize with [him] as a parent.” Un-
like the victims’ families who “didn’t have a chance to plead for
their children[’s] lives,” Ted continued, he had the opportunity and
was “on the stand . . . pleading for [his] son’s life.”
Finally, Acklin called Louise Vance (his grandmother) and
Ms. Evans, who both told the jury that they couldn’t believe what
Acklin had done, they prayed for the victims’ families, and they
thought Acklin should receive a life sentence.
After deliberating, by a vote of ten to two, the jury recom-
mended that Acklin be sentenced to death.
2. The Sentence
About two weeks after receiving the jury’s recommenda-
tion, the state trial court held a sentencing hearing. The state did
not have any additional testimony to present. But Mr. Rahmati
told the state trial court that Ted “ha[d] something that he would
like to tell the [c]ourt.” Mr. Rahmati clarified that Ted’s statement
was “not going to be testimony” and that he was “not going to ask
[Ted] questions.”
Ted stood up and “plead[ed] for [his] son’s life” like he did
before the jury. Ted emphasized that Acklin “was raised in a Chris-
tian home, Protestant ethics, hard work, good values, to love and
respect others.” But, Ted explained, “[s]omehow [Acklin] slipped”
from “the teachings that his mother and [Ted] had instilled in him.”
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Citing his experience as a pastor, Ted “fe[lt] like G-d ha[d] forgiven
[Acklin]” and that Acklin “felt remorse.”
With all of the evidence presented, the state trial court im-
posed Acklin’s sentence. The state trial court found that the state
had proven two aggravating factors—(1) Acklin knowingly created
a great risk of death to many persons, see Ala. Code § 13A-5-49(3),
and (2) the murders were especially heinous, atrocious, or cruel
compared to other capital offenses, see id. § 13A-5-49(8)—beyond a
reasonable doubt. Acklin caused a great risk of death to many per-
sons, the state trial court explained, because he was “the ‘trigger-
man’ of three of the deceased victims,” shot Mr. Rutherford in the
head, and shot Ms. Hayden “three times, resulting in an extremely
serious injury.” Acklin’s accomplice, Wilson, “shot [Mr.] Carter six
times in the neck and chest.” Overall, nineteen shots were fired
“inside [a] small room,” and “Acklin actually shot five of the six
people who were either killed or wounded.”
The murders were especially heinous, atrocious, or cruel,
the state trial court found, because Acklin tortured the victims be-
fore shooting five of them, one by one, in an “execution-style slay-
ing” that was “cold,” “calculated,” and “methodical[].” “Prior to
the discharge of the two weapons,” Acklin and his accomplices
“subjected [the victims] to threats and intimidation.” They held
the victims captive “at gun point,” “required [the victims] to re-
move various portions of their clothing (primarily their pants),”
“kicked and stomped [Mr.] Couch until he was almost uncon-
scious” before “cut[ting] off his pony tail with a pair of scissors,”
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18 Opinion of the Court 22-13599

and “repeatedly” beat and spat on the victims. During all of this,
the state trial court continued, Acklin sexually assaulted Ms. Hay-
den and taunted Mr. Rutherford about her performing oral sex alt-
hough “[s]he did not.” Acklin also stole the victims’ belongings and
shoved the .357 magnum in Mr. Rutherford’s mouth and under
Mr. Beaudette’s chin.
The state trial court then turned to the mitigating circum-
stances. It found that Acklin established one statutory mitigating
circumstance—he had no significant history of prior criminal activ-
ity, id. § 13A-5-51(1)—and he had proven three non-statutory miti-
gating circumstances: (1) Acklin was a quiet and polite person dur-
ing his formative years without a history of assaultive behavior;
(2) Acklin was in a committed relationship and had two children;
and (3) Acklin attended church and participated in church activities
when he was younger.
The state trial court rejected two other non-statutory miti-
gating circumstances proffered by Acklin—his remorse and that he
was raised in a good home. The state trial court found that Acklin
“[wa]s clearly not remorseful” and Acklin being raised in a good
home was not mitigating. “Most killers,” the state trial court ex-
plained, “are typically the products of poverty, a dysfunctional fam-
ily, physical or sexual abuse[, or] social deprivation.” But, “im-
pressed with the sincerity of the testimony by [Acklin’s] mother
and father,” the state trial court found that Ms. Evans and Ted
“[we]re clearly good people and tried to do the right thing in raising
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22-13599 Opinion of the Court 19

[Acklin].” After being raised in this “loving middle-class family,”
Acklin “made a conscious choice to become a killer.”
Weighing the aggravating factors against the mitigating cir-
cumstances, and considering the jury’s recommendation, the state
trial court found that the two aggravating factors “substantially
outweigh[ed]” the mitigating circumstances. The state trial court
also found, although “not required by law to make this second anal-
ysis, . . . each of the two aggravating circumstances, even standing
alone, outweigh[ed] all the mitigating circumstances.” Thus, the
state trial court sentenced Acklin to death.
Mr. Rahmati and Mr. Gray withdrew as counsel after the
sentencing hearing. Their final billing to Ms. Evans totaled more
than $75,000.
Acklin appealed his convictions and sentence with new
counsel, but the state appellate court affirmed. Acklin v. State, 790
So. 2d 975, 982 (Ala. Crim. App. 2000). Both the Alabama Supreme
Court and the United States Supreme Court denied his petitions for
a writ of certiorari. Ex parte Acklin, 790 So. 2d 1012 (Ala. 2001); Ack-
lin v. Alabama, 533 U.S. 936 (2001).
D. State Habeas Proceedings
With his direct appeal exhausted, Acklin moved for postcon-
viction relief under Alabama Rule of Criminal Procedure 32. He
alleged that he was denied effective assistance of trial counsel, in
violation of the Sixth Amendment, because his trial counsel had a
financial conflict of interest. Acknowledging he had to show the
conflict resulted in prejudice to obtain relief, Acklin asserted that
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20 Opinion of the Court 22-13599

Sullivan’s presumed prejudice rule applied to his claim. Where Sul-
livan applies, prejudice is presumed if the petitioner shows (1) “an
actual conflict of interest” (2) that “adversely affected his lawyer[s’]
performance.” 446 U.S. at 350. Acklin maintained that prejudice
should be presumed under Sullivan because his trial counsel had an
actual, financial conflict once Ted, who “provided the[ir] primary
financial support,” “threatened to withdraw [it] if evidence of [the
domestic] abuse was introduced at trial.” And, he added, the con-
flict had an adverse effect because trial counsel chose not to present
the domestic abuse evidence after Ted threatened to stop paying
them.
1. The Evidentiary Hearing
The rule 32 court held an evidentiary hearing on Acklin’s
motion for postconviction relief. In support of his Sullivan-based
financial-conflict-of-interest claim, Acklin presented testimony
from Mr. Rahmati, Mr. Gray, Ms. Evans, and one of his brothers,
Steve.
a. Mr. Rahmati
Mr. Rahmati testified about the “many fronts” he and
Mr. Gray “focus[ed] on” when investigating evidence for the guilt
and penalty phases, including Acklin’s history of substance abuse
and his diabetes. Mr. Rahmati knew soon after taking the case that,
“due to the facts of th[e] case, . . . there was a high probability” of
a penalty phase. The high probability of a penalty phase was why
he and Mr. Gray “looked at any and all mitigation avenues that
[they] had” throughout their investigation. For example, “from the
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22-13599 Opinion of the Court 21

very beginning” of the case, Mr. Rahmati asked Acklin and his par-
ents for the contact information of character witnesses who could
speak to Acklin’s “good character, demeanor[, and] all positive
events that [they] could possibly get in as evidence.” “[He] would
have asked [Acklin], [he] would have asked [Acklin’s] mom, [he]
would have asked [Acklin’s] father.” The witnesses that testified
during the penalty phase were the ones that the family told trial
counsel to look into.
As part of this investigation, Mr. Rahmati had “absolutely”
asked Acklin and Ms. Evans whether there had been abuse in the
family. Mr. Rahmati was only told about “minor spats,” “[n]othing
to the extent that was disclosed to [Mr. Rahmati] by Ms. Evans”
two days before the trial. That’s why Mr. Rahmati was “very sur-
prised” when Ms. Evans finally told him about Ted’s abuse; the
family had “never disclosed those details to [Mr. Rahmati or Mr.
Gray] even though [they] had discussed [it], with the whole family
that [they] could talk to, with the exception of [Acklin’s] brothers”
who were incarcerated. But, although surprised by Ms. Evans’s al-
legations, “all [Mr. Rahmati] wanted[] was the truth, so [he] could
figure out how to truly help [his] client.” He wasn’t sure “[h]ow
much impact” the domestic abuse evidence would’ve had when he
approached Ted and Acklin, but Mr. Rahmati “felt certainly that
[he] would need to try to introduce it.” And because he “felt so
strong about the need to try to introduce [the domestic abuse] ev-
idence,” he “felt the need” to memorialize Acklin’s instruction not
to present the evidence in the written acknowledgment.
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22 Opinion of the Court 22-13599

Overall, Mr. Rahmati thought that he and Mr. Gray “did
everything [they] absolutely, positively could do, and then some,”
when preparing for Acklin’s trial because he “gave [his] word” to
Ms. Evans that he would. It was Mr. Rahmati’s understanding that
Ms. Evans would be legally responsible for paying the fees and
costs of the representation because Ted did not sign the retainer
agreement. But Mr. Rahmati “knew that the family was having a
hard time financially, or Ms. Evans specifically.” Her financial dis-
tress “was obvious from Day 1,” and Mr. Rahmati “suspected
strongly” that he and Mr. Gray “were never going to get paid from
Day 1.”
Once Ms. Evans started paying trial counsel, Mr. Rahmati
viewed the money as “[n]ot really” a lot for work on a capital mur-
der case. Still, Mr. Rahmati “respect[ed] Ms. Evans for at least try-
ing” to contribute to her son’s defense, even though her contribu-
tions averaged only $100 or $200 a month. That the payments av-
eraged “$100- or $200-a-month” was “a very strong signal” that the
family did not “have the means to pay for attorney’s fees.”
Ms. Evans’s hard time paying for the representation was
why Mr. Rahmati approached Ted in March 1998 about pitching
in. Mr. Rahmati wasn’t sure that Ted was “really trying as hard as
Ms. Evans” and “assumed, as any parent, that [Ted] would contrib-
ute as a father.” But, “[a]t that point” in March 1998, the money
“wasn’t important to [Mr. Rahmati].”
Mr. Rahmati acknowledged that, on June 1, 1998, he re-
quested that the state trial court appoint him to the case because
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22-13599 Opinion of the Court 23

Acklin was indigent. If appointed to the case, he would’ve made
statutory fees of $40 an hour for in-court services and $20 an hour
for out-of-court services, subject to a $1,000 cap for the guilt phase
and a $1,000 cap for the penalty phase. That could’ve meant mak-
ing more money for “three hours in court” ($120) than what Ms.
Evans and Ted were, on average, “paying in a month.”
But Mr. Rahmati withdrew his request for court-appoint-
ment four days later. Mr. Gray didn’t have enough experience to
be appointed to capital cases, and both Mr. Rahmati and Acklin
wanted Mr. Gray to stay on the case. Although Mr. Rahmati “ob-
viously knew” the statutory fees would’ve helped because “the
family could not financially afford paying [his hourly] fee,” he
reemphasized that, “at that point[,] it wasn’t necessarily about the
money anymore.” “If you see somebody trying,” Mr. Rahmati tes-
tified, “that’s all you can ask for; and Ms. Evans . . . seemed to be
trying, even though it was $100 a month.”
b. Mr. Gray
Mr. Gray explained that he was essentially Mr. Rahmati’s
“first-year associate.” He didn’t take the lead on defense strategy.
Instead, he “would handle a lot of the research[ and] a lot of the
initial drafting” of motions, which Mr. Rahmati would review and
revise. Mr. Gray would also join Mr. Rahmati to interview wit-
nesses or talk to the prosecutors, “mainly taking notes.”
Mr. Gray “remember[ed], in getting ready for trial,” how he
and Mr. Rahmati “met with numerous of the witnesses in [their]
office.” They also met with Acklin “[m]any times” before trial and
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24 Opinion of the Court 22-13599

talked “extensively” with him. During these meetings, trial coun-
sel would advise Acklin, “Tell us everything you possibly can”—
trying to “get[] as much information about his background, his his-
tory, who he was.”
Mr. Gray couldn’t speak in detail about whether Ms. Evans
was keeping up with her payments as required by the retainer
agreement, but he did recall “receiv[ing] very little in terms of pay-
ments.”
c. Ms. Evans
When Ms. Evans testified at the rule 32 hearing, she
acknowledged that trial counsel asked her and Ted for the names
of character witnesses to contact. She didn’t remember Mr. Rah-
mati asking about abuse in the family or Acklin’s childhood, but
she admitted he could’ve asked. She also admitted that she didn’t
bring up Ted’s abuse until “right before [the] trial.”
Besides the examples of Ted’s abuse she gave Mr. Rahmati,
Ms. Evans described how, one night when she was pregnant with
Acklin, she and Ted got in an argument before Ted chased her out
of the house. Ted continued chasing Ms. Evans in his car before
she fell, and he brought her back home instead of to the emergency
room. Another time, when Acklin was a young child, Ms. Evans
and Acklin were in a car with Ted when he shoved Ms. Evans’s
head into the gear shift, bruising her face. When the family got
home, Ted pushed Ms. Evans into a closet.
Ted was particularly abusive in the lead-up to the couple’s
divorce. That was when “things [had] changed” because Ms. Evans
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22-13599 Opinion of the Court 25

confessed to Ted that she was having an affair. “[F]rom that time
on, when [Ted] would come home from work[] and [Ms. Evans]
and the boys would be at the house, he would just come in . . . and
jump[] right in on [her],” threatening to kill her. Acklin and his
brothers would “scream[]” for their father to stop.
Ms. Evans finally left Ted “for good” after another time
where he chased her out of the house, as “[t]he boys” were “stand-
ing in the yard . . . and they were crying.” Ted was given primary
custody of the kids after the divorce.
All of this, as Ms. Evans perceived it, changed Acklin from a
happy child into an angry one. But she added that Ted’s abuse
didn’t stop Acklin from growing up to graduate high school, main-
tain employment, and have a committed relationship and two chil-
dren of his own. And although Ms. Evans regularly took Acklin
and his brothers to church before her divorce with Ted, Ted took
the kids to the church he pastored after the divorce, where Acklin
participated in the youth choir. It was “possible” that Ted abused
the kids after the divorce, but Ted mostly directed his abuse “to-
ward [Ms. Evans].” There was one incident after the divorce when
Acklin locked himself in a bathroom because Ted was threatening
him with a gun.
d. Steve Acklin
Steve provided more details about how Ted abused his sons
by beating them and threatening them with a gun. Like Ms. Evans,
Steve added that Acklin “always had a job” when they were grow-
ing up; for example, Acklin worked at a supermarket before
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26 Opinion of the Court 22-13599

graduating high school. But Ted’s past abuse still affected Steve
“[a] little bit” although he grew up to own and run a business.
Steve had talked to trial counsel “during th[e] trial period” but
could not remember what they discussed.
e. Other Evidence
Besides the witness testimony, Acklin introduced four cate-
gories of documents at the rule 32 hearing: (1) letters from
Mr. Rahmati to Acklin’s parents about money owed under the re-
tainer agreement; (2) letters between Mr. Rahmati and Acklin and
Ms. Evans about trial preparation; (3) Ms. Evans’s medical records;
and (4) trial counsel’s billing statement.
In the first category—the letters from Mr. Rahmati to Ack-
lin’s parents about money owed under the retainer agreement—
there were a total of twenty-one letters. Mr. Rahmati sent Ms. Ev-
ans and Ted eight letters between December 15, 1997, and October
15, 1998, thanking them for particular payments. Six additional let-
ters from Mr. Rahmati, which predated Acklin’s trial, informed
Ms. Evans of the more than $20,000 due on the retainer. And
Mr. Rahmati sent Ted seven letters, dated after Acklin’s trial, in-
forming him of the balance due and asking him to set up a payment
plan.
The second category were letters updating Acklin and his
mother about case developments and asking them to assist with
trial preparation. For example, in a November 6, 1997, letter,
Mr. Rahmati updated Acklin on Wilson’s case, explained that he
was reviewing the “extensive” discovery in Acklin’s case so that
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22-13599 Opinion of the Court 27

they could discuss the “most important” items, noted that he was
preparing motions, and stressed that he needed to speak with
Ms. Evans and Ted about “character witnesses [to] use at th[e]
trial.” In two letters dated January 14 and 22, 1998, Mr. Rahmati
asked Acklin to identify witnesses to subpoena. He followed those
two letters with another one on April 3, 1998, assuring Acklin he
was “continuing to work on [the] case as [wa]s everyone in [his]
office.” Mr. Rahmati was reviewing the forensic evidence, but he
requested that Acklin respond with “anything else that . . . may be
beneficial to [the] case.” Acklin responded to Mr. Rahmati’s April 3
letter with a list of nine potential character witnesses, whom
Mr. Rahmati promised to contact.
Besides these letters to Acklin, on May 28, 1997, Mr. Rah-
mati wrote to Ms. Evans. He updated her that the state trial court
denied the motions to suppress evidence and change venue. And
he assured her that he would “continue work on [the] case,” advis-
ing that “a poll of Madison County residents” would be Acklin’s
“best chance” for a change of venue.
The third category was Ms. Evans’s medical records, which
documented how she was admitted to the hospital for her injuries
from Ted pushing her out of a window. And the fourth category
was the billing statement. It listed each of the payments Ms. Evans
and Ted made over trial counsel’s two years working on the case,
in addition to the tasks trial counsel completed. By the time of Ack-
lin’s trial, Ms. Evans was billed for more than four hundred hours
of work.
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28 Opinion of the Court 22-13599

2. The Rule 32 Court Denied Acklin’s
Motion for Postconviction Relief
After the evidentiary hearing, the rule 32 court denied Ack-
lin’s motion for postconviction relief. Because Acklin’s financial-
conflict-of-interest claim was based on Sullivan, the rule 32 court
began by setting out the Sullivan test. Under Sullivan, the rule 32
court explained, Acklin had the burden to show (1) “an actual con-
flict of interest” that (2) “adversely affected his lawyer[s’] perfor-
mance.” “[S]how[ing] both” meant that “prejudice may be pre-
sumed.”
Although Acklin argued that he met both parts of the Sulli-
van test and was entitled to a presumption of prejudice, the rule 32
court disagreed. It decided that he fell short because he failed to
prove that there was an actual conflict of interest, and, even if there
was, any conflict did not have an adverse effect on his trial counsel’s
performance. Because Acklin didn’t meet his burden, the rule 32
court concluded, he wasn’t entitled to relief on his Sullivan-based
claim that a financial conflict of interest presumptively prejudiced
the result in his case.
3. The State Appellate Court Affirmed the Denial of
Acklin’s Motion for Postconviction Relief
Acklin appealed the rule 32 court’s order, again asserting
that he was entitled to relief under Sullivan because “(1) his attor-
ney[s] had an actual conflict of interest, and (2) the conflict of inter-
est adversely affected the attorney[s’] representation.” But the
state appellate court affirmed the rule 32 court’s denial of Acklin’s
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22-13599 Opinion of the Court 29

Sullivan-based financial-conflict-of-interest claim. Acklin v. State,
266 So. 3d 89, 100–13, 121 (Ala. Crim. App. 2017).
The state appellate court began by outlining the Sullivan
test. See id. at 106–07. Sullivan’s first factor—an actual conflict of
interest—required Acklin to show that his trial counsel “actively
represented conflicting interests” or “place[d themselves] in a situ-
ation inherently conducive to divided loyalties.” Id. at 106 (marks
and citations omitted). If he could show an actual conflict of inter-
est, the state appellate court explained, Sullivan’s second factor—
the conflict had an adverse effect on his trial counsel’s perfor-
mance—required him to show that trial counsel “made a choice
between possible alternative courses of action” because of the con-
flict. Id. (marks and citation omitted).
Applying the Sullivan test, the state appellate court con-
cluded that (1) there was no actual conflict, and (2) even if there
was, any conflict did not have an adverse effect on trial counsel’s
performance. Id. at 107–13. As to the actual-conflict-of-interest fac-
tor, the state appellate court explained that there was no actual con-
flict because Ted’s threat when Mr. Rahmati confronted him about
Ms. Evans’s abuse allegations—that he was “done” with Acklin and
“helping with th[e] case”—wasn’t necessarily a threat to stop pay-
ing trial counsel if they presented evidence of the abuse. Id. at 108.
And there was no actual conflict of interest because, by the time
Ted made the threat two days before trial, Acklin’s trial counsel
had no expectation that they would be paid what they were owed
for representing him. Id.
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30 Opinion of the Court 22-13599

As to whether any conflict of interest had an adverse effect
on trial counsel’s performance, the state appellate court explained
that there was no adverse effect because the evidence showed
Mr. Rahmati and Mr. Gray worked diligently to help Acklin avoid
a death sentence despite not being paid what they were owed from
the beginning of their representation. Id. at 107–08. And there was
no adverse effect on his trial counsel’s performance because the
only reason trial counsel didn’t present evidence of Ted’s abuse
was that Acklin forbade them from mentioning it, and not because
of any financial conflict of interest. Id. at 108–09, 113.
E. Federal Habeas Petition
Acklin petitioned the district court for a writ of habeas cor-
pus under 28 U.S.C. section 2254, alleging that Sullivan clearly es-
tablished he was entitled to relief on his financial-conflict-of-inter-
est claim. According to Acklin, the state appellate court’s decision
that Acklin wasn’t entitled to relief because he failed to satisfy ei-
ther part of the Sullivan test—was based on two unreasonable con-
clusions. First, Acklin argued, the state appellate court unreasona-
bly found that there was no actual conflict of interest. And second,
the state appellate court unreasonably found that any conflict had
no adverse effect on his trial counsel’s performance.
The district court denied Acklin’s petition. First, the district
court concluded that Acklin’s petition failed because Sullivan “[wa]s
not clearly established federal law” that applied to his financial-con-
flict-of-interest claim. Sullivan, the district court explained, was
limited to conflicts caused by trial counsel’s concurrent
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22-13599 Opinion of the Court 31

representation of multiple defendants. It did not clearly establish
federal law on financial conflicts of interest. Because Sullivan did
not clearly establish federal law on financial conflicts, “the [state
appellate court] could not have erred in applying it.”
“Even if [the Sullivan] test applie[d]” outside the multiple
concurrent representation context, the district court concluded,
“Acklin’s claim still fail[ed]” because the state appellate court didn’t
unreasonably hold (1) there was no actual conflict, and (2) any con-
flict did not have an adverse effect on his trial counsel’s perfor-
mance. As to the first Sullivan factor, the district court explained,
the state appellate court’s conclusion that there was no actual con-
flict wasn’t based on an unreasonable determination of the facts, as
Acklin argued, because Ted “never unambiguously issued . . . a
threat” to stop paying trial counsel. “[N]either [Mr.] Rahmati nor
Acklin ever testified that they understood the comments in that
manner.” Given the context of Ted’s conversation with Mr. Rah-
mati, there were multiple explanations for Ted’s statement “that
ha[d] nothing to do with financial support—e.g., that [Ted] would
withdraw emotional or moral support for Acklin, that he would
avoid seeing or speaking with Acklin again, or that he would no
longer voluntarily . . . plea for mercy” like he did “at the judicial
sentencing phase.”
As to the second Sullivan factor, the district court concluded
that the state appellate court’s holding that any conflict had no ad-
verse effect on trial counsel’s performance also wasn’t unreasona-
ble. The district court explained that, despite any conflict: (1) trial
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32 Opinion of the Court 22-13599

counsel’s testimony and billing statement showed they did every-
thing they could to save Acklin from a death sentence; and (2) the
reason trial counsel didn’t present evidence of Ted’s abuse was be-
cause Acklin forbade them from mentioning it.
The district court denied a certificate of appealability. But
we granted one on Acklin’s Sullivan-based financial-conflict-of-in-
terest claim.

II. STANDARD OF REVIEW
We review de novo a district court’s denial of a section 2254
petition. Smith v. Comm’r, Ala. Dep’t of Corr., 924 F.3d 1330, 1336
(11th Cir. 2019).

III. DISCUSSION
Because Acklin’s habeas claim was adjudicated on the merits
by the state appellate court, the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) “erects a formidable barrier” to his
request for federal habeas relief. Downs v. Sec’y, Fla. Dep’t of Corr.,
738 F.3d 240, 256 (11th Cir. 2013) (quoting Burt v. Titlow, 571 U.S.
12, 19 (2013)); see Sears v. Warden GDCP, 73 F.4th 1269, 1280 (11th
Cir. 2023) (noting how “we review ‘the last state-court decision on
the merits’” (quoting Greene v. Fisher, 565 U.S. 34, 40 (2011))).
“AEDPA permits federal courts to grant habeas relief in only two
circumstances after a state court has denied relief.” Downs, 738 F.3d
at 256.
First, AEDPA allows a federal court to grant habeas relief if
the state court decision was “contrary to, or involved an
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22-13599 Opinion of the Court 33

unreasonable application of, clearly established [f]ederal law, as de-
termined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). A state court decision is “contrary to” clearly estab-
lished federal law if it “contradicts the United States Supreme
Court on a settled question of law or holds differently than did that
Court on a set of materially indistinguishable facts.” Downs, 738
F.3d at 257 (citation omitted). And it is “an ‘unreasonable applica-
tion’ of clearly established federal law if it identifie[d] the correct
legal rule from Supreme Court case law but unreasonably applie[d]
that rule to the facts of the petitioner’s case.” Putman v. Head, 268
F.3d 1223, 1241 (11th Cir. 2001).
Under either of these “highly deferential” standards, it is not
enough to show that the state court decision was “merely wrong
or even clear error.” Pye v. Warden, Ga. Diagnostic Prison, 50 F.4th
1025, 1034 (11th Cir. 2022) (en banc) (first quoting Davis v. Ayala,
576 U.S. 257, 269 (2015); then quoting Shinn v. Kayer, 592 U.S. 111,
118 (2020)). Rather, the state court “decision must be ‘so obviously
wrong that its error lies beyond any possibility for fairminded disa-
greement.’” Id. (quoting Shinn, 592 U.S. at 118).
“[T]he appropriate ‘measuring stick’” when assessing the
state court’s decision “is ‘clearly established federal law,’ which
means ‘the holdings, as opposed to the dicta, of the Supreme
Court’s decisions as of the time of the relevant state court deci-
sion.’” Schwab v. Crosby, 451 F.3d 1308, 1323 (11th Cir. 2006) (marks
omitted) (quoting Putnam, 268 F.3d at 1241). The Supreme “Court
has held on numerous occasions that it is not ‘an unreasonable
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34 Opinion of the Court 22-13599

application of’ ‘clearly established [f]ederal law’ for a state court to
decline to apply a specific legal rule that has not been squarely es-
tablished by th[e] Court.” Knowles v. Mirzayance, 556 U.S. 111, 122
(2009) (citations omitted).
Second, a federal court may grant habeas relief if the state
court “decision . . . was based on an unreasonable determination of
the facts in light of the evidence presented in the [s]tate court pro-
ceeding.” 28 U.S.C. § 2254(d)(2). If a petitioner takes this path to
federal habeas review, “he must overcome two hurdles.” Presnell
v. Warden, 975 F.3d 1199, 1205 (11th Cir. 2020). One—because the
state court’s determinations of fact “shall be presumed to be cor-
rect” under AEDPA, 28 U.S.C. § 2254(e)(1)—the petitioner must
“rebut the presumption . . . with ‘clear and convincing evidence’”
if he contests specific factual findings, Presnell, 975 F.3d at 1205
(quoting 28 U.S.C. § 2254(e)(1)). Two, “he must overcome the def-
erence that we give to the state court’s adjudication under [sec-
tion] 2254(d).” Id.; see Pye, 50 F.4th at 1035 (“[E]ven if a petitioner
successfully carries his burden under [section] 2254(e)(1)—showing
by clear and convincing evidence that a particular state-court fac-
tual determination was wrong—he does not necessarily meet his
burden under [section] 2254(d)(2) . . . .”); Titlow, 571 U.S. at 18 (“re-
iterat[ing] ‘that a state-court factual determination is not unreason-
able merely because the federal habeas court would have reached
a different conclusion in the first instance’” (quoting Wood v. Allen,
558 U.S. 290, 301 (2010)).
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With the AEDPA framework in mind, we turn to Acklin’s
arguments for why he’s entitled to federal habeas relief. As he did
in the district court, Acklin contends that he’s entitled to relief on
his Sullivan-based financial-conflict-of-interest claim because the
state appellate court unreasonably concluded that there was no ac-
tual conflict of interest, and it unreasonably found that any conflict
had no adverse effect on trial counsel’s performance.
We disagree. Sullivan was not clearly established federal law
on Acklin’s financial-conflict-of-interest claim. And even if it was,
Acklin has not shown that the state appellate court unreasonably
decided that there was no actual conflict and that any conflict had
no adverse effect on trial counsel’s performance.
A. Sullivan Was Not Clearly Established Federal Law
on Acklin’s Financial-Conflict-of-Interest Claim
Acklin is not entitled to federal habeas relief under AEDPA
because Sullivan was not clearly established federal law on his fi-
nancial-conflict-of-interest claim. Our starting point is Sullivan,
which addressed a different type of conflict of interest—one caused
by multiple concurrent representation.
There, the habeas petitioner was indicted with two code-
fendants. Sullivan, 446 U.S. at 337–38. The petitioner was tried
first, and his trial counsel—the same attorneys who represented his
codefendants—chose not to present a defense case because they
didn’t want to “expos[e]” their “witnesses for the other two trials
that were coming up.” Id. at 338–39; see also id. at 350. After his
conviction, the petitioner sought federal habeas relief, alleging that
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36 Opinion of the Court 22-13599

his trial counsel were ineffective because of the multiple concur-
rent representation. Id. at 339–40, 345. The Third Circuit agreed
with him because he made a “showing of a possible conflict of in-
terest.” Id. at 340 (citation omitted).
The Supreme Court reversed because, instead of showing
the mere “possibility” of a conflict of interest, “a defendant must
establish that an actual conflict of interest adversely affected his
lawyer’s performance.” Id. at 350. The Court explained that satis-
fying this test entitles the petitioner to a presumption that the con-
flict of interest prejudiced the outcome of his trial. Id. at 349–50
(“[A] defendant who shows that a conflict of interest actually af-
fected the adequacy of his representation need not demonstrate
prejudice in order to obtain relief.”). The presumption was neces-
sary because conflicts caused by multiple concurrent representa-
tion are especially likely to prejudice the outcome, even though
proving prejudice may be difficult. See id. at 349 (“[U]nconstitu-
tional multiple [concurrent] representation is never harmless er-
ror. . . . [The Court has] refused ‘to indulge in nice calculations as
to the amount of prejudice’ attributable to the conflict.” (quoting
Glasser v. United States, 315 U.S. 60, 76 (1942), superseded on other
grounds as stated in Bourjaily v. United States, 483 U.S. 171, 181
(1987))).
But while Sullivan clearly established federal law for conflicts
caused by multiple concurrent representation, the Supreme Court
later cautioned in Mickens “that Sullivan does not expressly apply to
counsel’s personal conflicts of interests outside the multiple
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22-13599 Opinion of the Court 37

[concurrent] representation context.” Downs, 738 F.3d at 265 (cit-
ing Mickens v. Taylor, 535 U.S. 162, 174–75 (2002)). In Mickens, the
petitioner alleged a successive representation conflict—he was
tried for murder by lead counsel who had previously represented
the victim in a different matter. 535 U.S. at 164–65. Like in Ack-
lin’s case, the state and the Mickens petitioner litigated the habeas
petition “on the assumption that . . . Sullivan would be applicable”
to his successive-representation-conflict claim. Id. at 174.
The parties’ assumption “was not unreasonable,” the Su-
preme Court acknowledged, in light of some decisions by the cir-
cuit courts that extended “Sullivan ‘unblinkingly’ to ‘all kinds of al-
leged attorney ethical conflicts’”—including “when representation
of the defendant somehow implicates counsel’s personal or finan-
cial interests.” Id. (emphasis added and citations omitted). But “[i]t
must be said,” the Mickens Court emphasized, “that the language
of Sullivan itself does not clearly establish, or indeed even support,
such expansive application.” Id. at 175. Sullivan “stressed the high
probability of prejudice arising from multiple concurrent representa-
tion,” yet “[n]ot all attorney conflicts present comparable difficul-
ties.” Id. (emphasis added). “Whether Sullivan should be extended
to [other] cases remain[ed], as far as the jurisprudence of th[e]
Court [wa]s concerned, an open question.” Id. at 176 (noting how
“the grounds on which [Mickens] was presented to [the Court]”
made it unnecessary to delineate Sullivan’s scope).
Although Mickens’s caution that Sullivan does not apply to
conflicts (like financial conflicts) outside the multiple concurrent
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38 Opinion of the Court 22-13599

representation context was dicta, “this [c]ourt has expressly agreed
with Mickens” twice. Downs, 738 F.3d at 265. We first expressly
agreed with Mickens in Schwab, where the petitioner’s public de-
fender “insisted that he could not cross-examine” his coworkers
about an evidentiary chain-of-custody issue. Schwab, 451 F.3d at
1318–19. The petitioner argued that the state habeas court unrea-
sonably applied Sullivan in denying his claim that he lacked effec-
tive, conflict-free trial counsel because his counsel’s loyalties were
divided between him and counsel’s coworkers. Id. at 1319–20,
1322.
But we rejected the Schwab petitioner’s Sullivan-based con-
flict claim, concluding that the state habeas court’s “failure to ex-
tend the Sullivan rule to th[e] new context” wasn’t unreasonable.
Id. at 1328. “If, as the Supreme Court has told us [in Mickens], Sul-
livan does not hold that a presumed prejudice rule applies outside
multiple [concurrent] representation circumstances, . . . it cannot
be that Supreme Court precedent dictate[d] or clearly establishe[d]
that the Sullivan rule applies in other conflict situations.” Id. at 1325
(acknowledging Mickens’s discussion of Sullivan was dicta, but
adopting it because the Supreme Court dicta was “well thought
out, thoroughly reasoned, and carefully articulated analysis,” and
“not [the] subordinate clause, negative pregnant, devoid-of-analy-
sis, throw-away kind of dicta”). “[E]ven if the Mickens opinion had
never been issued, we would [have] reach[ed] the same result” be-
cause Sullivan, on its face, “did not involve any other context” be-
yond multiple concurrent representation. Id. at 1327–28 (“Take
away the statements in Mickens and the fact remains that there is
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22-13599 Opinion of the Court 39

no Supreme Court decision holding that any kind of presumed
prejudice rule applies outside the multiple [concurrent] representa-
tion context.”).
We agreed with Mickens a second time in Downs, where the
habeas petitioner alleged that his trial counsel’s contingency fee
agreement created a financial conflict of interest. Downs, 738 F.3d
at 247, 264–65. Like the Schwab petitioner—and Acklin—the
Downs petitioner alleged that his claim was “governed by” Sullivan.
Id. at 265. And, like in Schwab, we explained that “Sullivan dealt
with a conflict of interest in the context of counsel’s [multiple] con-
current representation.” Id. Thus, “it was far from clearly estab-
lished that Sullivan applied to [the petitioner]’s contingency fee
claim.” Id.
The same goes for Acklin’s Sullivan-based financial-conflict-
of-interest claim. Although “Sullivan dealt with a conflict of inter-
est in the context of counsel’s [multiple] concurrent representa-
tion,” id., Acklin alleged that a financial conflict divided his trial
counsel’s loyalties. But “the language of Sullivan itself does not
clearly establish, or indeed even support,” Sullivan’s application to
a claim that a third-party payer forced trial counsel to choose be-
tween their client and their “financial interests.” See Mickens, 535
U.S. at 174–75. Indeed, the Downs petitioner also alleged a financial
conflict of interest—that a contingency fee forced counsel to
choose between the client and money—and we concluded “it was
far from clearly established that Sullivan applied to [the] claim.”
Downs, 738 F.3d at 264–65; see also Reynolds v. Hepp, 902 F.3d 699,
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40 Opinion of the Court 22-13599

708 (7th Cir. 2018) (“The Supreme Court itself simply has not ex-
tended Sullivan, or any constitutional analysis of conflicts of inter-
est, to financial conflicts between attorney and client.”).
To be sure, we are not saying that Sullivan can never be ap-
plied to financial-conflict-of-interest claims. Instead, our conclu-
sion is that whether the Supreme Court will apply Sullivan to con-
flict-of-interest claims outside the multiple concurrent representa-
tion context—including to financial-conflict-of-interest claims—is
“an open question.” See Mickens, 535 U.S. at 176. And because it’s
an open question, “it cannot be that Supreme Court precedent dic-
tate[d] or clearly establishe[d] that the Sullivan rule applies in other
conflict situations”—including the financial conflict of interest Ack-
lin has alleged. See Schwab, 451 F.3d at 1325. As the Supreme Court
has repeatedly explained, “it is not ‘an unreasonable application of’
‘clearly established [f]ederal law’ for a state court to decline to ap-
ply a specific legal rule that has not been squarely established by
th[e] Court.” Knowles, 556 U.S. at 122 (citations omitted); see also
Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1288 (11th Cir. 2012)
(“The Supreme Court has reiterated, time and again, that, in the
absence of a clear answer—that is, a holding by the Supreme
Court—about an issue of federal law, we cannot say that a decision
of a state court about that unsettled issue was an unreasonable ap-
plication of clearly established federal law.” (citations omitted)).
In response, Acklin cites to Wood v. Georgia, 450 U.S. 261
(1981), as clearly established federal law that Sullivan applies to fi-
nancial conflicts of interest caused by third-party payer
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22-13599 Opinion of the Court 41

arrangements. True, Wood involved a possible financial conflict
caused by a third-party payer arrangement. See id. at 268–71. But,
as we explained in Schwab and Downs (decided more than twenty
years after Sullivan and Wood), “there [wa]s no Supreme Court deci-
sion holding that any kind of presumed prejudice rule applies out-
side the multiple [concurrent] representation context.” Schwab,
451 F.3d at 1327–28 (emphasis added); see Downs, 738 F.3d at 265.
And Mickens (also decided more than twenty years after Sullivan
and Wood), expressly considered Wood before cautioning that Sul-
livan hasn’t been extended beyond the multiple concurrent repre-
sentation context. See Mickens, 535 U.S. at 169–70 (discussing
Wood); id. at 174–76 (emphasizing that Sullivan doesn’t expressly
apply outside the multiple concurrent representation context).
The Supreme Court certainly understands its own cases better than
we do.
We read Wood the same way the Supreme Court did in Mick-
ens, and the same way we did in Schwab and Downs—Wood does
not extend Sullivan’s presumed prejudice rule outside the multiple
concurrent representation context. Instead, Wood merely “re-
mand[ed] . . . for further findings concerning a possible due process
violation” caused by the “possibility of a conflict.” 450 U.S. at 262–
63, 269–74. That’s not a holding from the Supreme Court that Sul-
livan applies to financial-conflict-of-interest claims.
Besides Wood, Acklin directs us to three of our cases—Dallas
v. Warden, 964 F.3d 1285 (11th Cir. 2020), Freund v. Butterworth, 165
F.3d 839 (11th Cir. 1999) (en banc), and Buenoano v. Singletary, 963
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42 Opinion of the Court 22-13599

F.2d 1433 (11th Cir. 1992)—as examples of where we’ve applied
Sullivan outside the multiple concurrent representation context.
But to the extent these cases applied Sullivan outside the multiple
concurrent representation context, they cannot clearly establish
federal law under AEDPA. “[C]ircuit precedent may not be used
‘to refine or sharpen a general principle of Supreme Court jurispru-
dence into a specific legal rule that [the Supreme Court] has not
announced.’” Downs, 738 F.3d at 256–57 (second alteration in orig-
inal) (quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013)). In any
event, even if Dallas, Freund, and Buenoano could clearly establish
federal law for AEDPA purposes, these cases did not involve a fi-
nancial conflict of interest caused by a third-party payer arrange-
ment, much less recognize that the Supreme Court has extended
Sullivan to conflicts like the one Acklin alleged here. See Dallas, 964
F.3d at 1302–04 (where trial counsel represented a state agency in
an “unrelated” civil suit); Freund, 165 F.3d at 860 (“a successive rep-
resentation case”); Buenoano, 963 F.2d at 1438 (where trial counsel
entered into “a book and movie contract” about the case during
the penalty phase).
In the end, Acklin brought a Sullivan claim based on his trial
counsel’s financial conflict of interest. But Sullivan wasn’t clearly
established federal law on conflicts of interest (like financial ones)
outside the multiple concurrent representation context. “Because
it was far from clearly established that Sullivan applied to [Acklin’s
financial-conflict-of-interest] claim,” Acklin is not entitled to relief
on his Sullivan-based claim under AEDPA. See Downs, 738 F.3d at
265.
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22-13599 Opinion of the Court 43

B. Even if Sullivan Was Clearly Established Federal Law on Finan-
cial-Conflict-of-Interest Claims, the State Appellate Court Didn’t
Unreasonably Apply Sullivan or Base its Decision on an Unrea-
sonable Determination of the Facts
Even if Sullivan was clearly established federal law on finan-
cial-conflict-of-interest claims, Sullivan required Acklin to show
(1) “an actual conflict of interest” (2) that “adversely affected his
lawyer[s’] performance” in order to presume prejudice. 446 U.S. at
350. The first factor required Acklin to “‘make a factual showing
of inconsistent interests’ or point to ‘specific instances in the record’
to suggest an actual impairment of his . . . interests.” Freund, 165
F.3d at 859 (quoting Smith v. White, 815 F.2d 1401, 1404 (11th Cir.
1987)); see Tuomi v. Sec’y, Fla. Dep’t of Corr., 980 F.3d 787, 796 (11th
Cir. 2020) (“The ‘mere possibility of conflict of interest does not
rise to the level of a Sixth Amendment violation.’” (quoting
Buenoano v. Singletary, 74 F.3d 1078, 1086 (11th Cir. 1996))). And
the second factor required Acklin to “demonstrate that [the] con-
flict of interest had an effect upon the representation that he re-
ceived.” Downs, 738 F.3d at 265 (citation omitted); see Freund, 165
F.3d at 860 (explaining that the petitioner “must show some link”
between the conflict of interest and a reasonable, but foregone, de-
fense strategy (citation omitted)).
Applying Sullivan, the state appellate court decided that Ack-
lin fell short on both factors: (1) there was no actual conflict, and
(2) any conflict did not have an adverse effect on his trial counsel’s
performance. See Acklin, 266 So. 3d at 106–13. Acklin argues that
the state appellate court’s decision was based on an unreasonable
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44 Opinion of the Court 22-13599

determination of the facts under section 2254(d)(2)—and that
AEDPA deference therefore does not apply to his Sullivan claim.
See Jones v. Walker, 540 F.3d 1277, 1288–89 n.5 (11th Cir. 2008) (en
banc). We disagree.
1. The State Appellate Court Didn’t Unreasonably Conclude
That There Was No Actual Conflict of Interest
We’ll start with the state appellate court’s conclusion that
there was no actual conflict of interest. The state appellate court
explained that there was no actual conflict because, as the rule 32
court found: (1) Ted’s threat, when Mr. Rahmati confronted him
about Ms. Evans’s abuse allegations, wasn’t an explicit threat to
stop paying trial counsel if they presented evidence of the abuse;
and (2) by the time of Ted’s threat, trial counsel had no expectation
that they’d be paid what they were owed for the representation.
See id. at 107–08. Acklin has not presented clear and convincing
evidence that these factual findings were wrong, and he has not
shown that the state appellate court’s conclusion that no actual
conflict of interest existed was based on an unreasonable determi-
nation of the facts overall.
a. Acklin Did Not Present Clear and Convincing Evidence That
Ted’s Threat Was About Paying Trial Counsel
First, the state appellate court concluded there was no actual
conflict because Ted’s statement to Mr. Rahmati when confronted
about Ms. Evans’s abuse allegations two days before the trial—
“You tell Nick if he wants to go down this road, I’m done with him”
and “done helping with th[e] case”—wasn’t an explicit threat by
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22-13599 Opinion of the Court 45

Ted to stop paying trial counsel. See id. at 108. After reviewing the
record, we agree with the district court that the state court’s finding
wasn’t clearly and convincingly wrong. See Pye, 50 F.4th at 1034–
35 (explaining that overcoming AEDPA’s presumption of correct-
ness, with clear and convincing evidence, is the petitioner’s initial
burden when challenging a state court’s factual findings). By the
time of trial, Ted was helping Acklin in ways that had nothing to
do with paying for the representation. Ted helped Acklin emotion-
ally—visiting Acklin in prison “every other Sunday” “if not every
Sunday,” speaking with Acklin “every week,” trying to maintain
the type of father-son relationship that he didn’t have with his fa-
ther, and praying for “G-d to help” the victims’ families “forgive
[his] son.” Ted also helped Acklin build a mitigation case by iden-
tifying character witnesses and by twice volunteering to plead for
2
his son’s life during the penalty phase. It was plausible for the state
appellate court to read Ted’s threat directed to Acklin as withdraw-
ing his emotional support and help with the mitigation case, rather
than his help with paying trial counsel. Cf. id. at 1043–44 (conclud-
ing that the state habeas court’s “plausible” interpretation of three
affidavits, “[w]hether or not the best reading” or “most natural”
one, wasn’t clearly and convincingly wrong).

2
The concurring opinion says that we have misrepresented the facts about
Ted’s assistance in building a mitigation case. We have not. When Ms. Evans
was asked if Ted “also g[a]ve some names of character witnesses” to Mr. Rah-
mati, she testified, “Yes, he did.”
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46 Opinion of the Court 22-13599

The state appellate court’s reading of Ted’s threat as not
about payment to trial counsel was consistent with the context of
Ted’s conversation with Mr. Rahmati. Rather than wanting to talk
about his fees or what was owed under the retainer agreement,
Mr. Rahmati had just discovered potential mitigating evidence—
that Ted abused his wife and kids—and invited Ted to his office to
ask him to testify about it. At no point when Mr. Rahmati was plead-
ing with Ted to testify did he or Ted talk about trial counsel’s re-
tainer, fees, or costs. Ted’s threat was directed to Mr. Rahmati’s
request that he testify about the abuse, and not about other topics
outside Acklin’s mitigation case.
Acklin insists that Ted’s “done with” statement was neces-
sarily a threat to stop paying trial counsel because the word “done”
is “categorical,” “mean[ing] that [Ted] would be done helping Ack-
lin and the case in all ways.” But Acklin puts words in Ted’s mouth
that he never said. Ted did not threaten trial counsel that he’d stop
helping with the case “in all ways.” Ted limited the threat to Ack-
lin—saying “tell Nick” and “I’m done with him”—and he made the
threat during a meeting about mitigating evidence. It was not
clearly and convincingly wrong for the state appellate court to read
3
Ted’s threat the way he said it.

3
The concurring opinion oddly reads this section as us explaining “that be-
cause Acklin’s father, Ted, told [Mr.] Rahmati . . . to tell Acklin ‘I’m done with
him,’ the ‘threat’ was aimed at Acklin—not at his trial counsel.” But we’ve
said no such thing.
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22-13599 Opinion of the Court 47

b. The State Court Did Not Unreasonably Find That, by the Time of
Ted’s Threat, Trial Counsel Didn’t Expect to Be Paid
Second, the state appellate court also based its conclusion
that there was no actual conflict of interests on the rule 32 court’s
finding that when Ted made the threat just before trial, trial coun-
sel knew they would not get paid what they were owed for the
representation. See Acklin, 266 So. 3d at 107–08. We cannot say
this finding was clearly and convincingly wrong, either. See Pye, 50
F.4th at 1034–35.
Mr. Rahmati testified that he and Mr. Gray had no expecta-
tion of being paid for the representation by the time he confronted
Ted about the abuse. To Mr. Rahmati, it “was obvious from
Day 1” that Ms. Evans was in financial distress, and he “suspected
strongly” that he and Mr. Gray “were never going to get paid.”
Ms. Evans—despite the retainer agreement requiring the $25,000
payment to be made before Mr. Rahmati completed any work on
the case—didn’t pay Mr. Rahmati up front during the initial Sep-
tember 30, 1996, consultation. Ted didn’t pay Mr. Rahmati any-
thing up front either, or even sign the retainer agreement.
But Mr. Rahmati started working on Acklin’s case the day
after being retained despite his strong suspicion that he’d lose
money. Then, when Ms. Evans’s payments towards the $25,000
retainer finally trickled in, they were far short of what she owed:
$500 in October 1996, $200 in November 1996 and February 1997,
and ten payments of $150 or less through the October 1998 trial.
Ted, for his part, rarely chipped in over the two years Mr. Rahmati
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48 Opinion of the Court 22-13599

and Mr. Gray worked on the case: $700 in March 1998, $2,000 in
September 1998, and $200 in October 1998. This pattern of mostly
“$100- or $200-a-month” payments was “a very strong signal” to
Mr. Rahmati that Acklin’s parents couldn’t afford the retainer.
Meanwhile, Acklin wasn’t paying trial counsel anything. Because
the family was barely paying any of trial counsel’s fees and costs,
more than $50,000 remained unpaid by the time of trial.
Still, despite expecting to lose tens of thousands of dollars
from representing Acklin, trial counsel persisted, researching, draft-
ing motions, and following evidentiary leads. Trial counsel knew
that they were not getting paid nearly what they should, but
Mr. Rahmati emphasized that he and Mr. Gray weren’t represent-
ing Acklin for the money. The money “wasn’t important” and “it
wasn’t necessarily about the money.” Instead, trial counsel stuck
it out for over two years because Mr. Rahmati “gave [his] word” to
Ms. Evans that he’d defend her son. It was enough, Mr. Rahmati
explained, that “Ms. Evans . . . seemed to be trying, even though it
was $100 a month.” Her trying was “all [he] c[ould] ask for.”
True, as Acklin emphasizes, there was also evidence from
the rule 32 hearing that Mr. Rahmati asked Ted to pitch in for his
son’s defense both before and after trial. But the question AEDPA
requires us to answer is not whether there was evidence that
would’ve supported a different finding by the state appellate court.
Rather, under AEDPA, we must ask if what the state appellate
court actually found—that, by the time of trial, trial counsel didn’t
expect to be paid—was clearly and convincingly wrong. See 28
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22-13599 Opinion of the Court 49

U.S.C. 2254(e)(1); Pye, 50 F.4th at 1034. Based on Mr. Rahmati’s
testimony and the other evidence, the answer is no.
* * *
In short, Acklin hasn’t shown by clear and convincing evi-
dence that the state court’s key factual findings (that Ted didn’t ex-
plicitly threaten to stop paying and that counsel had already given
up on full payment by that time anyway) were wrong—or that the
state appellate court’s conclusion that no actual conflict of interest
existed was based on an unreasonable determination of the facts.
So even if Sullivan was clearly established federal law on Acklin’s
financial-conflict-of-interest claim, Acklin has not met his burden
of showing that he is entitled to habeas relief under Sullivan. See 28
U.S.C. § 2254(d)(2), (e)(1); Sullivan, 446 U.S. at 350; see also Pye, 50
F.4th at 1035.
2. The State Appellate Court Didn’t Unreasonably Conclude
That Any Conflict Had No Adverse Effect on
Trial Counsel’s Performance
The state appellate court also held that Acklin failed to sat-
isfy Sullivan’s second factor because any conflict did not have an
adverse effect on his trial counsel’s performance. See Acklin, 266
So. 3d at 107–13. The state appellate court found no adverse effect
on trial counsel’s performance because: (1) despite any conflict,
trial counsel never let a lack of payment deter them from diligently
representing Acklin; and (2) the only reason they didn’t present ev-
idence of Ted’s abuse was because Acklin forbade them from pre-
senting it. See id.
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50 Opinion of the Court 22-13599

a. The State Court Did Not Unreasonably Find That,
Despite A Lack of Payment, Trial Counsel Worked Diligently to
Defend Acklin
First, the state court found that any conflict had no adverse
effect on trial counsel’s performance because, from the beginning
of their representation, the “lack of payment did not curtail their
efforts” to defend Acklin. See id. at 107. Considering the evidence
of trial counsel’s exhaustive work on Acklin’s case and preparation
for his trial--despite never receiving more than a fraction of the
amount due for their services—this finding wasn’t clearly and con-
vincingly wrong. See Pye, 50 F.4th at 1034–35.
Evidence from the rule 32 hearing showed that, throughout
the case, trial counsel researched case law and prepared a variety
of motions—including for discovery, to suppress or exclude evi-
dence, to dismiss the indictment, and for a change of venue based
on pretrial publicity—aimed at bettering Acklin’s chances of avoid-
ing a conviction or death sentence. Trial counsel even subpoenaed
local news sources for records they could use to support the venue
motion. Mr. Rahmati sent Ms. Evans and Acklin multiple letters
updating them on these motions and other case developments, as-
suring them that he’d keep working on the case.
Trial counsel also focused on “many fronts” when investi-
gating evidence for trial. Not only did trial counsel subpoena the
state’s witnesses, for example, but they also investigated whether
Acklin’s marijuana and alcohol use before the murders, combined
with his diabetes, could be used to show that he lacked the intent
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22-13599 Opinion of the Court 51

to murder. To that end, trial counsel obtained Acklin’s medical
records, and they obtained and reviewed Dr. Maier’s report, eval-
uating whether substance abuse significantly impaired Acklin’s
judgment during the murders. And Mr. Rahmati separately con-
sulted another expert—Dr. Noggle—about Acklin’s diabetes and
substance abuse.
Besides the substance-abuse front, trial counsel “looked at
any and all mitigation avenues that [they] had.” “[F]rom the very
beginning” of the case, Mr. Rahmati explained, the mitigation in-
vestigation included looking into Acklin’s background and poten-
tial character witnesses. For example, Mr. Rahmati’s letters asked
Acklin and his parents to identify character witnesses that he
should contact or subpoena. Trial counsel contacted the witnesses
Acklin and his parents identified, interviewed them, and ultimately
presented six of them at the penalty phase.
Both Mr. Rahmati and Mr. Gray also described how they
met with Acklin or his parents many times, as Mr. Gray put it, to
“get[] as much information about his background, his history, [and]
who he was” as they could. During these meetings, Mr. Rahmati
“would have asked [Acklin], [he] would have asked [Acklin’s]
mom, [and he] would have asked [Acklin’s] father” for any infor-
mation that would be helpful. One question Mr. Rahmati “abso-
lutely” asked was whether there had been any abuse in the family.
Trial counsel’s testimony about these diligent efforts—re-
searching case law, drafting and filing motions, reviewing discov-
ery, issuing subpoenas, consulting Acklin and his family,
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52 Opinion of the Court 22-13599

interviewing witnesses, and investigating exculpatory and mitigat-
ing evidence—was corroborated by their billing statement. The
billing statement showed that trial counsel spent more than four
hundred hours on Acklin’s case before the October 19, 1998 trial
started. Mr. Rahmati testified that the billing statement “certainly”
reflected the minimum amount of time he and Mr. Gray worked
on Acklin’s case, and he doubted that the billing “reflect[ed] . . . all
the time.”
Even when Ted threatened to be “done with” Acklin and
“done helping with” Acklin’s case if they introduced evidence of
Ted’s abuse, counsel did not allow those threats to interfere with
their representation of Acklin. Mr. Rahmati met with Acklin, con-
firmed Ms. Evans’s allegations of abuse, informed Acklin of the
confrontation with Ted, and tried to persuade him to introduce ev-
idence about Ted’s abuse at the penalty phase. Based on trial coun-
sel’s testimony and their billing statement, the state court wasn’t
clearly and convincingly wrong that a lack of payment did not af-
fect counsel’s efforts to diligently represent Acklin. Mr. Rahmati
and Mr. Gray “did everything [they] absolutely, positively could
do, and then some”—even with Ted’s threat.
b. The State Court Did Not Unreasonably Find That
Acklin Was the Only Reason Trial Counsel Didn’t
Present the Domestic Abuse Evidence
Second, the state appellate court’s conclusion that any con-
flict had no adverse effect on trial counsel’s performance was also
based on the lower court’s finding that Acklin—by forbidding trial
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22-13599 Opinion of the Court 53

counsel from presenting evidence of Ted’s abuse—was the only
reason they didn’t present it. See Acklin, 266 So. 3d at 108, 113. Like
the other findings, this one too is not clearly and convincingly
wrong. See Pye, 50 F.4th at 1034–35.
Trial counsel’s testimony and the written acknowledgment
both supported the state court’s finding that trial counsel would’ve
readily presented the domestic abuse evidence but for Acklin’s ex-
press instruction not to. After confronting Ted about Ms. Evans’s
abuse allegations, Mr. Rahmati testified, he told Ted that he would
“do whatever [he] need[ed] to, to get [Ted] to th[e] sentencing
phase.” He meant it. Mr. Rahmati went to Acklin, told Acklin eve-
rything Ms. Evans disclosed about the domestic abuse, and told
Acklin everything Ted said when confronted about it. Then, once
Acklin confirmed that Ms. Evans’s allegations were true, Mr. Rah-
mati explained to Acklin that the evidence was “important” and
“felt certainly that [he] would need to try to introduce it.”
But despite Mr. Rahmati’s insistence that Acklin let him pre-
sent the domestic abuse evidence, Acklin wouldn’t have it. He in-
structed Mr. Rahmati not to subpoena Ted or introduce evidence
of his abuse. Mr. Rahmati informed Acklin that he could call other
witnesses with knowledge of the abuse, including his mother or his
brothers. But Acklin instructed Mr. Rahmati not to introduce evi-
dence of Ted’s abuse under any circumstances. And Acklin gave
that instruction because Ted’s domestic abuse “didn’t cause [him]
to be here” and he didn’t “want to ruin [his parents’] lives or have
anything like this to come out on them.” Indeed, Mr. Rahmati “felt
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54 Opinion of the Court 22-13599

so strong[ly]” that he “need[ed] to try to introduce th[e] evidence”
that he drafted a written acknowledgment memorializing Acklin’s
instruction. That acknowledgment—signed by Acklin—confirmed
trial counsel were “prepared to offer [the domestic abuse evidence]
on [Acklin’s] behalf” because it could be “considered by a jury in
mitigation,” but Acklin had “expressly forbidden them to mention
or present such evidence.”
Acklin maintains that it was unreasonable for the state ap-
pellate court to rely on the written acknowledgment. In his view,
the written acknowledgment did not effectively “waive” the con-
flict of interest because Mr. Rahmati didn’t disclose that one existed
before having him sign it. Rather than “curing” the conflict, the
argument goes, the acknowledgment “simply state[d] that Acklin
d[id] not want evidence of the abuse presented.”
But Acklin misses the point. The state appellate court didn’t
find that Acklin “waived” or “cured” the conflict. Instead, the state
appellate court found that any financial conflict had no adverse ef-
fect on trial counsel’s performance because Acklin wouldn’t have
let them present the abuse evidence under any circumstances. See
Acklin, 266 So. 3d at 113 (“Acklin voluntarily signed a statement ac-
knowledging that he had prohibited his attorneys from introducing
evidence of the alleged abuse.”). The written acknowledgment
supported that finding because, as Acklin admits, it expressly
“state[d] that Acklin d[id] not want evidence of the abuse pre-
sented.” In any event, even if the state court couldn’t consider the
written acknowledgment, its finding was still supported by
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22-13599 Opinion of the Court 55

Mr. Rahmati’s undisputed testimony confirming that Acklin di-
rected trial counsel not to introduce evidence of Ted’s abuse, de-
spite Mr. Rahmati imploring Acklin to let it in because it was miti-
gating evidence that could help his case.
* * *
Acklin hasn’t shown the state court’s factual findings sup-
porting its conclusion that any conflict had no adverse effect on
trial counsel’s performance were clearly and convincingly wrong.
And he does not otherwise argue that the state appellate court un-
reasonably applied Sullivan or based its conclusion on Sullivan’s sec-
ond factor on an unreasonable determination of the facts. So, even
if Sullivan was clearly established federal law on Acklin’s financial-
conflict-of-interest claim, he failed to meet his burden of showing
the state appellate court’s conclusion on Sullivan’s second factor
4
was unreasonable.

4
As a fallback, Acklin argues that even if his Sullivan claim fails, he can still
show ineffective assistance of counsel under Strickland. But we agree with the
concurring opinion that the state appellate court’s finding that there was no
reasonable probability of a different result if trial counsel presented evidence
of Ted’s abuse was not unreasonable. See Acklin, 266 So. 3d at 112–13 (deter-
mining there was no reasonable probability of a different result because the
state trial court found significant aggravating factors and evidence of Ted’s
abuse would’ve been entitled to little mitigating weight, considering Acklin’s
age at the time of the murders); see also Tompkins v. Moore, 193 F.3d 1327, 1337
(11th Cir. 1999) (“[W]here there are significant aggravating circumstances and
the petitioner was not young at the time of the capital offense, evidence of a
deprived and abusive childhood is entitled to little, if any, mitigating weight.”
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56 Opinion of the Court 22-13599

IV. CONCLUSION
The district court correctly concluded that AEDPA pre-
cludes federal habeas relief on Acklin’s Sullivan claim. Sullivan was
not clearly established federal law on his financial-conflict-of-inter-
est claim. And even if it was, the state appellate court still did not
unreasonably conclude there was no actual conflict that had an ad-
verse effect on trial counsel’s performance.
The district court’s order denying Acklin’s federal habeas pe-
tition is AFFIRMED.

(marks and citation omitted)); Mills v. Singletary, 63 F.3d 999, 1025–26 (11th
Cir. 1995) (reasoning similarly).
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22-13599 WILSON, J., Concurring 1

WILSON, Circuit Judge, Concurring:
I concur with the majority that the law is not clearly estab-
lished about whether Cuyler v. Sullivan, 446 U.S. 335 (1980), applies
to conflicts involving third-party payors. I also agree that Nicholas
Acklin has not provided clear and convincing evidence required to
overcome our deference to the state appellate court’s factual deter-
minations 1 under 28 U.S.C. § 2254(d)(2).
I write separately to address two issues. First, I address why
I would find that the conflict of interest created by the third-party
payor arrangement with Acklin’s father, Theodis (Ted) Acklin,
caused Acklin’s counsel to be deficient under Strickland v.

1 Even though Acklin does not overcome the high standard to show the state

appellate court’s factual determinations were unreasonable, I have a few con-
cerns with the majority’s framing of those facts. First, the majority explains
that because Acklin’s father, Ted, told Behrouz Rahmati, Acklin’s counsel, to
tell Acklin “I’m done with him,” the “threat” was aimed at Acklin. Although
the majority does not say Ted’s threat was aimed at trial counsel, that can be
inferred from the state appellate court’s decision given that Ted’s payments to
Rahmati were his main contribution to and involvement with Acklin at the
time. The majority states, “Ted helped Acklin emotionally,” with weekly vis-
its in prison, but this is based on Ted’s own testimony. There is little to no
other evidence that speaks to the emotional support that Ted provided from
anyone other than Ted himself.
Second, the majority misrepresents the facts about Ted’s assistance in building
a mitigating case. When Rahmati was asked whether the witnesses called at
the penalty phase were people that Ted and Velma suggested as character wit-
nesses, Rahmati responded: “Either Ted or Velma or Nick.” Velma later tes-
tified that Acklin’s father had given the name of one person, before the attor-
ney conducting the cross-examination was asked to rephrase his line of ques-
tioning to avoid hearsay.
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2 WILSON, J., Concurring 22-13599

Washington, 466 U.S. 668 (1984), but that deficiency did not preju-
dice the outcome of Acklin’s case. Second, I explain why the Su-
preme Court should concretely address whether a presumption of
prejudice applies to conflicts other than multi-defendant represen-
tation—including conflicts involving third-party payors.
I.
To prevail on a Strickland claim, Acklin must show: (1) his
counsel’s performance was deﬁcient because of the conﬂict, and
(2) that deﬁcient performance proved prejudicial. See 466 U.S. at
687. I would ﬁnd that the conﬂict resulted in deﬁcient performance
by Acklin’s counsel, but the deﬁcient performance was not prejudi-
cial.
A.
Acklin argues that his counsel was ineffective because a con-
flict of interest arose from his father’s role as a third-party payor
and subsequent threat to withhold further payment if Acklin’s
counsel, Behrouz Rahmati, presented evidence of Ted’s abuse.
The facts of this case concern me. A third-party payor
(Ted)—with whom counsel had not entered into a formal agree-
ment—had significant access to counsel, influenced what evidence
was presented at trial, and was relied on during crucial moments of
the trial and sentencing, despite multiple allegations that Ted (the
payor) abused Acklin and his family members.
Two days before trial, Velma, Acklin’s mother, disclosed to
Rahmati that Ted had severely abused her and their children,
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22-13599 WILSON, J., Concurring 3

including Acklin. She shared that “if [Ted] was mad at the kids, he
would hold them down, put a gun to them, threaten to shoot them,
threaten to kill them.” She recounted that Ted once “shoved her
out of the window” of their house, leaving her to “[fall] to the
ground.”2 Following his meeting with Velma, Rahmati met Ted
and asked him about the abuse. Rahmati first told Ted about his
conversation with Velma and how Velma had described that Ted
had physically abused Velma, Acklin, and his siblings. According
to Rahmati, Ted “wasn’t happy.” Ted “didn’t appreciate the idea
that his ex-spouse had disclosed these facts to” Rahmati. Rahmati
explained to Acklin that Ted was visibly angry, saying “You tell
[Acklin] if he wants to go down this road, I’m done with him.”
The next day, Rahmati met with Acklin to debrief the con-
versations with Velma and Ted. Rahmati shared that he had
learned about the abuse and explained that this information could
be used as mitigating evidence at the potential sentencing phase.
Acklin, however, hesitated to introduce the evidence. He ex-
plained to Rahmati that he did not “want to ruin [his family mem-
bers’] lives or have anything like this to come out on them.”
“The effective assistance of counsel demands not only a min-
imally competent lawyer, but also counsel unburdened by a

2 Additional evidence, discovered in the post-conviction proceedings, illus-

trates the abuse Acklin and his siblings experienced. Records from the Ala-
bama Department of Human Resources describe an incident in which Ted ad-
mitted pulling a gun on his sons while stating, “I brought you into the world,
and I can take you out of it.”
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4 WILSON, J., Concurring 22-13599

conflict of interest that impedes zealous representation.” Dallas v.
Warden, 964 F.3d 1285, 1302 (11th Cir. 2020). A defendant “must
establish that no competent counsel would have taken the action
that his counsel did take.” Newland v. Hall, 527 F.3d 1162, 1184
(11th Cir. 2008) (quotation marks omitted).
I agree with Acklin that a conflict emerged, and the conflict
caused his counsel to be deficient. See Zuck v. Alabama, 588 F.2d
436, 439 (5th Cir. 1979) (explaining that actual conflict may emerge
where a defense attorney engages or works with non-parties whose
interests are adverse to the client).3 The meeting between Rahmati
and Acklin strongly suggests that Rahmati placed not only his own
interests, but Ted’s interests, before the interests of his client—Ack-
lin. Rahmati should have recognized that Ted expressed an interest
conflicting with Acklin’s.
The evidence of abuse suggested the need for further inves-
tigation, but Rahmati did not investigate. Instead, Rahmati’s inves-
tigation following the disclosure was non-existent. Rahmati did
not investigate Velma’s allegations, which were later confirmed by
Acklin, beyond speaking with Ted, the alleged perpetrator. Find-
ing Rahmati’s representation sufficient, the state appellate court
noted the hours Rahmati and his co-counsel, Kevin Gray, spent pre-
paring for trial, as well as the interviews conducted with Acklin’s
family, character witnesses, and experts before the abuse

3 In Bonner v. City of Prichard, we adopted all decisions of the former Fifth Cir-

cuit handed down before October 1, 1981, as binding precedent. 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc).
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22-13599 WILSON, J., Concurring 5

disclosure. But these actions do not make up for the deficiency of
not introducing this piece of mitigating evidence—evidence di-
rectly affected by the conflict.4 The limitations on the investigation
did not stem from reasonable professional judgment.
Rahmati should have at least disclosed the conflict and then
obtained a valid waiver of Acklin’s right to conflict-free counsel.
Rahmati did neither.5 Instead, Rahmati took an alarming action

4 The state appellate court relied on Schriro v. Landrigan, (as does the Commis-

sioner), in finding that a defendant may not bring an ineffective assistance of
counsel claim for failing to present mitigating evidence when that failure to
do so was at the defendant’s request. 550 U.S. 465 (2007). But the facts in
Landrigan differ significantly from the facts here. In Landrigan, the defendant
waived the introduction of mitigating evidence in the presence of the trial
court. Id. at 478–80. The trial court questioned the defendant directly about
his desire to introduce mitigating evidence and the defendant refused. Id.
Here, the waiver was drafted outside the purview of the court, with only Ack-
lin and Rahmati present.
5 The state appellate court’s treatment of the waiver is problematic for two

key reasons. First, while Rahmati testified that Acklin consented to the third-
party payor arrangement, there are few details illuminating what this consent
entailed. Consenting to a third-party payor arrangement and waiving one’s
right to conflict free counsel are not synonymous. The state appellate court
did not address this distinction. A waiver should only be considered valid
where it was “knowing, intelligent, and voluntary.” United States v. Valois, 915
F.3d 717, 727 (11th Cir. 2019) (quotation marks omitted). A waiver is knowing
and intelligent if it meets the three-part test outlined in United States v. Garcia,
447 F.3d 1327, 1337 (11th Cir. 2006). The record does not support finding that
Acklin: (1) knew that Ted’s involvement and statement constituted a conflict;
(2) realized the potential consequences of this conflict; or (3) was aware of his
right to obtain other counsel in face of the conflict. Second, despite not en-
gaging in an analysis under Valois or Garcia, the state appellate court relied on
the waiver to foreclose a full analysis of Acklin’s ineffective assistance of
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6 WILSON, J., Concurring 22-13599

after securing the waiver. Despite his knowledge of the abuse—
which Velma, Acklin, and Acklin’s brother had corroborated—
Rahmati relied heavily on Ted, the alleged abuser, during both the
trial and at sentencing. In fact, Ted was the only witness to testify
at sentencing. Despite having corroborating evidence of Ted’s
abuse, Rahmati’s decision to put Ted on the stand, shows Rah-
mati’s deficient representation.
Based on these facts, I would find that Rahmati was deficient
because of the conflict. Rahmati’s representation of Acklin fell out-
side the “wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. His actions do not support a finding that
he acted as competent counsel would. See Newland, 527 F.3d at
1184.
B.
To establish prejudice, a criminal defendant must show that
“there is a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been differ-
ent.” Strickland, 466 U.S. at 694. “In the capital sentencing context,
the prejudice inquiry asks whether there is a reasonable probability
that, absent the errors, the sentencer would have concluded that
the balance of aggravating and mitigating circumstances did not

counsel claim. According to the state appellate court, because “there was un-
contradicted evidence that counsel’s decision not to introduce evidence of the
abuse was at the express direction of Acklin,” Acklin could not later try to hold
counsel accountable for doing as he wished. This conclusion draws from in-
complete analysis.
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22-13599 WILSON, J., Concurring 7

warrant death.” Pye v. Warden, Ga. Diagnostic Prison, 50 F.4th 1025,
1041 (11th Cir. 2022) (en banc) (quotation marks omitted and alter-
ation adopted). Pye instructs this court to consider the totality of
available mitigation evidence—both from trial and the habeas pro-
ceeding—and reweigh it against the aggravating evidence. Id. at
1042.
All the state courts that heard Acklin’s case asserted that the
aggravating circumstances would be particularly difficult to over-
come, stressing the violent nature of the underlying offense.6 In-
deed, the state appellate court reviewed the evidence of Ted’s
abuse and was not convinced that Acklin’s sentence would have
been different. In making its decision, the state appellate court re-
lied on the trial court’s determination that “[t]he abuse Acklin en-
dured at the hands of his father clearly had no effect on Acklin’s
ability to work, maintain relationships, or to function in society.”
The state appellate court concluded that Acklin did not meet Strick-
land’s requirement of demonstrating any reasonable probability
that the abuse would have altered the weighing of the evidence. I
agree. Given the nature of this capital offense, I do not believe the
evidence of abuse in this case would alter the court’s weighing of
the evidence of each aggravating factor.

6 The aggravating circumstances here included: (1) that the defendant know-

ingly created a great risk of death to many persons; and (2) that the capital
offense was especially heinous, atrocious, or cruel compared to other capital
offenses.
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8 WILSON, J., Concurring 22-13599

II.
As noted by the majority, in Sullivan, the Supreme Court
held that where a defendant has identified a conflict of interest that
“actually affected the adequacy of his representation,” the defend-
ant is entitled to a presumption of prejudice. 446 U.S at 349–50.
But the Court has not yet concretely extended this rule to third-
party payor situations. The closest the Court has come is in Wood
v. Georgia, 450 U.S. 261 (1981). In Wood, the “petitioners were rep-
resented by their employer’s lawyer, who may not have pursued
their interests single-mindedly.” Id. at 271–72. Instead, counsel ap-
peared to be advancing arguments that conflicted with the argu-
ments in the petitioners’ best interest for the benefit of the third-
party payor (the employer). Id. The Court noted the petitioners’
constitutional rights would be implicated if “counsel was influ-
enced in his basic strategic decisions” by the interests of the third-
party payor. Id. at 272. Because the parties did not argue the pos-
sibility of an actual conflict, the Court sidestepped the issue, re-
manding for a hearing to determine whether, because of the in-
volvement of a third-party payor, the attorney “may not have pur-
sued [the clients’] interests single-mindedly.” Id. at 271–73.
This case provides an opportunity for the Court to address
whether Sullivan’s presumption of prejudice applies when a third-
party payor agreement creates a conflict that adversely affected
counsel’s performance. Defendants like Acklin, along with the cir-
cuits, would benefit from the Supreme Court’s guidance.

Nicholas Bernard Acklin v. Commissioner, Alabama Department of Corrections

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