Marie SALTS, Petitioner-Appellee-Cross-Appellant, v. Christopher B. EPPS, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellants-Cross-Appellees; Michael Salts, Petitioner-Appellee-Cross-Appellant, v. Christopher Epps, Commissioner, Mississippi Department of Corrections, et al., Respondents-Appellants-Cross-Appellees, 676 F.3d 468

BENAVIDES, Circuit Judge: Respondents Christopher Epps, Commissioner of the Mississippi Department of Corrections, and Jim Hood, Mississippi Attorney General, (collectively, “the State”) appeal from the district court’s grant of Michael and Marie Saltses’ petition for a writ of habeas corpus. The Saltses petitioned for habeas relief because, inter alia, the Mississippi Court of Appeals denied their Sixth Amendment claim for ineffective assistance of counsel.

Because the Mississippi court’s decision was contrary to clearly established law, we AFFIRM the district court’s grant of habeas relief under 28 U.S.C. § 2254. I. Background and procedural history A. The Saltses’ conviction for embezzlement Petitioners Michael and Marie Salts, proprietors of a family-run funeral-home in Boonville, Mississippi, were charged with and convicted of embezzlement in connection with their business. Part of the Salts-es’ business involved providing “funeral insurance,” or burial insurance, to many of their customers.

The Saltses provided this coverage for years through Gulf National Insurance (“Gulf’). Many funeral-home clients would send their burial insurance premiums directly to the Saltses, who would in turn forward the payments to Gulf. In 1994, however, Gulf terminated relations with the Saltses and stopped providing insurance to their customers. Some of the Saltses’ customers were apparently unaware of this fact, and they continued sending payments directly to the Saltses. The State alleged that, in a number of instances, the Saltses kept these payments rather than returning them to the clients.

It was on this theory that the Saltses were charged with six counts each of embezzlement of customer funds. The Saltses were indicted on May 12, 2003, but more than two years passed before their eventual trial, which began on October 3, 2005. This delay is attributable to a number of causes, including two judges recusing themselves from the case, renovations at the courthouse, and a series of continuances requested by the Saltses’ counsel. In the time between their indictment and trial, the Saltses had three lawyers.

The first, Steve Farese, represented them for only a few months before withdrawing due to “two separate irreconcilable conflicts.” After Farese withdrew, the court set a trial date for March 3, 2004. From the time Farese withdrew until several days before trial, the Salts were represented by a second attorney, Michael Thorne. During his time as the Saltses’ attorney, Thorne requested and received a number of continuances. The first request cited the need to obtain discovery materials from Farese, the complexity of the case, and the potential need to retain an expert accountant.

The second and third requests, filed in the following months, explained that “this attorney has not been able to properly prepare ... due to other litigation involving these defendants.” In the third request, the Saltses specifically waived their right to a speedy trial.

In granting this third request, the trial court set the case for trial on June 27, 2005, though it noted that “[i]n the event the renovation of the Courthouse has not been completed by the date set for trial, the case will be continued to a later date.” On June 24, 2005, Thorne requested another continuance, in light of a need to “travel[ ] to Florida with his Wife to seek treatment for a serious medical condition.” The motion noted that Thorne had “also been advised that the renovations to the Prentiss County Courthouse [wejre still under construction and the use of the Courthouse [wa]s not available.” The trial judge granted the motion and set the case for trial on September 6, 2005.

Then, on August 5, 2005, the Saltses filed a motion to transfer venue, citing local media publicity surrounding the charges against them in Prentiss County. The trial court granted the motion on September 13, 2005, transferring venue to Lee County, Mississippi. The trial court set the case for trial in Lee County on October 3, 2005. On the eve of trial, September 28, 2005, Thome made one final request for continuance “due to illness” in his family.

He indicated that he was not prepared for trial in five days and needed “additional time in which to prepare for the trial of this matter to properly defend this case.” The very next day, the record shows that the Saltses terminated Thorne as their attorney, citing “difference of opinion on the way this case ought to be represented.” At a pretrial hearing, the Saltses clarified that this “difference of opinion” related to Thorne’s lack of preparation for trial. They informed the Court that Thorne had not subpoenaed witnesses or otherwise prepared their case.

Despite the Saltses’ decision to fire Thorne and his admitted lack of preparation, the trial judge indicated at the pretrial conference that he would not grant any further continuances and would proceed with the scheduled trial date of October 3, 2005. When asked whether he would allow the Saltses time at least to retain new counsel, the trial judge demurred: Now, I don’t know what the problem is. And again, I don’t care what the problem is. That’s not my prerogative to look into the relationship between attorneys and their clients.

It has taken me in the neighborhood of six to eight months to arrive at a trial setting for this, not entirely because of things the defendants did, but a portion of that had to do with the fact that the courthouse in Prentiss County was being remodeled or whatever, and we didn’t have a courtroom to try this case, but finally it is set for trial. I have a venire panel coming in on Monday and, any thoughts about a continuance in this case, you can abandon that. Any attorney who comes in to it at this late date must assume that it is for trial, because I’m not going to continue it.

The Salts were in the end able to retain new counsel, Jim Waide, who continues to represent them in this proceeding. On the morning the trial was scheduled to begin—before the jury was selected and sworn and before opening arguments— Waide filed a motion to dismiss, or in the alternative, a motion to continue. Waide argued that “[t]here is an obvious conflict of interest between the Defendants,” in light of the fact that they were both charged with embezzlement in connection with their family business, but both denied any embezzlement or knowledge of embezzlement.

Further, “during various time periods one Defendant operated the business and during other times the other Defendant operated the business.” Waide elaborated on this conflict of interest in court the morning of the trial: Your honor, the indictment in this case charges embezzlement. It charges both defendants with embezzlement. There’s extensive discovery in the case, boxes of materials, but I can’t see anything that identifies which defendant is charged with embezzlement at which times.

And I also know that the proof is going to show that at various years, it goes on for 17 years, but at various times one of the defendants wouldn’t even been working in the business during some of those times. There’s an obvious conflict of interest. It’s obvious that one attorney should represent one defendant and should argue that they haven’t shown that my defendant was even working there at that particular time.

So there’s an obvious conflict of interest, and the prosecution knowing this case has gone on for 17 years and investigating it would have certainly known that from time to time which one of them was active in the business. And one lawyer can’t very well point the finger at one defendant and not at the other one and say, well my—for example, I might say the last three or four years, Mr. Salts has been working outside the business, hasn’t even been involved in the business. But it’s hard to make that argument representing both.

The trial court declined to inquire further into the circumstances of this alleged conflict of interest and denied the motion to continue based on the need to obtain separate counsel, apparently believing that the Saltses had previously waived any conflict of interest. After disposing of the conflicts issue, the trial court proceeded to select the jury and try the case. At trial, the Saltses were each convicted of four counts of embezzlement and each were sentenced to ten years imprisonment in Mississippi state prison. B.

The Saltses’ habeas petition After the Saltses were convicted at trial, they filed a direct appeal to the Mississippi Court of Appeals, which resulted in a published opinion. On direct appeal, the Saltses raised both claims that they now advance in this habeas proceeding: (1) ineffective assistance of counsel stemming from joint representation, and (2) ineffective assistance of counsel stemming from the trial court’s denial of a continuance, The state court denied relief on both claims. The Saltses petitioned the Mississippi Supreme Court for review, and their petition was denied without opinion.

After exhausting their state remedies, the Saltses petitioned for a writ of habeas corpus in the United States District Court for the Northern District of Mississippi. A magistrate judge reviewed their petition and recommended that the district court issue the writ based on their conflict-of-interest claim. The district court considered objections from both parties and then adopted the magistrate judge’s recommendation. The district court thus granted the Saltses’ petition on their joint representation claim but not their denial-of-continuance claim. The State appealed from the district judge’s ruling.

The Saltses cross-appealed, arguing that they were entitled to relief on both of their claims. II. Standard of review A Habeas standard of review In reviewing requests for federal habeas relief, this Court reviews the district court’s findings of fact for clear error and its conclusions of law de novo, “ ‘applying the same standards to the state court’s decision as did the district court.’ ” The Saltses’ petition is subject to the heightened standard of review under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).

AEDPA prohibits habeas relief unless the adjudication of the claim either (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” “A state court decision is ‘contrary to ... clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases.’” It may also be contrary to established precedent if “the state court confronts a set of facts that are materially indistinguishable from a decision of. [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent.” It is an unreasonable application of Supreme Court precedent “if the state court identifies the correct governing legal rule from [the] Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case.” AEDPA requires us to presume that the state court’s findings of fact are correct “unless the petitioner rebuts that presumption by clear and convincing evidence.” B.

No “qualified-waiver” standard of review applies here. The Saltses argue that we should apply a different standard of review to the State’s appeal in this case because it failed to timely object to the magistrate judge’s findings and recommendations (F&R).

This Court treats failure to timely object to a Magistrate Judge’s F&R as a “qualified waiver” of the right to appeal: failure to object timely to a magistrate judge’s report and recommendation bars a party, except upon grounds of plain error ..., from attacking on appeal not only the proposed factual findings ..., but also the proposed legal conclusions, accepted ... by the district court, provided that the party has been served with notice that such consequences will result from a failure to object ... , Here, we decline to find a “qualified waiver” of the right to appeal—and thus we decline to vary our standard of review—because we conclude that the State’s objections to the F&R were timely.

The State filed its objections to the F&R four days after the appointed deadline, at which time it also sought leave of the district court to enlarge the time for filing. The State cited as its reason for delay a malfunction in the electronic court filing (ECF) system. The district court granted the State’s request for more time. Because the district court extended the State’s deadline to object to the F&R, its filing was timely unless the district court abused its discretion in extending the deadline.

When a party moves to extend a deadline provided by the Federal Rules of Civil Procedure after the deadline has passed, the district court may grant the motion “for good cause ... if the party failed to act because of excusable neglect.” A leading treatise on civil procedure notes that “[t]he district judge enjoys broad discretion to grant or deny an extension,” and the “excusable neglect” standard is “intended and has proven to be quite elastic in its application.” Professors Wright and Miller lay out a number of factors relevant to the determination of “excusable neglect”: (1) “the possibility of prejudice to the other parties,” (2) “the length of the applicant’s delay and its impact on the proceeding,” (3) “the reason for the delay and whether it was within the control of the movant,” and (4) “whether the movant has acted in good faith.” We find that the district court did not abuse its “broad discretion” in granting the State’s request for a four-day extension.

The record reflects no prejudice to the Saltses in the four-day delay, nor is there any indication that the State’s delayed response had any impact on the proceeding. There is no evidence of bad faith on the State’s part. The Saltses argue that the State’s delay was within its control, and that the onus was on the State to ensure that its electronic document had been filed properly. This may be true, but it does not render an abuse of discretion the district judge’s determination that the State’s neglect was excusable.

Thus, we conclude that the State timely objected to the F&R and decline to find a qualified waiver of the right to appeal. III. Joint representation Multiple representation of criminal defendants may deprive them of their Sixth Amendment right to counsel.

Such representations may “ ‘prevent an attorney from challenging the admission of evidence prejudicial to one client but perhaps favorable to another, or from arguing at the sentencing hearing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing that of another.’ ” It may also preclude a defense attorney from “exploring possible plea negotiations and the possibility of an agreement to testify for the prosecution.” Despite these dangers, the Supreme Court long ago held that joint representation of criminal defendants “is not per se violative of constitutional guarantees of effective assistance of counsel.” Two lines of cases are relevant to a determination of when a joint representation deprives a defendant of his right to counsel so as to require reversal of his conviction: one derives from the Supreme Court’s decision in Holloway v.

Arkansas (which applies where counsel objects at trial to a multiple representation), the other from Cuyler v. Sullivan (which governs multiple-representation situations where no timely objection was raised). . The state court denied the Saltses’ joint-representation ineffective-assistance claim because it found that: (1) the Saltses had waived their right to conflict-free representation, and (2) they failed to prove an actual conflict of interest stemming from the joint representation.

The state court’s first rationale—waiver—was an unreasonable determination of the facts in light of evidence in the state-court record. The second rationale—failure to demonstrate an actual conflict of interest—was contrary to clearly established law. A. The Saltses did not waive the right to counsel. The Mississippi Court of Appeals held first that the Saltses had waived any objection to the joint representation. This holding was an unreasonable determination of the facts in light of the evidence presented in the state-court proceeding.

When the Saltses moved to continue the case in light of a joint-representation conflict of interest, the trial judge denied their motion because of his “recollection” that the Saltses had waived any objection to the conflict. The record is wholly devoid of documentation or evidence of this purported waiver, as noted by the state appeals court, the district court, and even the respondents in this proceeding. Moreover, by the end of trial, the trial judge’s “recollection” of the Saltses’ waiver had changed substantially.

At a post-trial motion hearing, the trial judge averred that the Saltses’ counsel had failed to raise a number of concerns, including potential conflicts of interest, in advance of trial. At that point, the judge said, “I don’t recall any particular argument concerning the conflict of interest. There was some discussion about a severance, which I denied.” Despite this complete lack of evidence of waiver, the state appeals court nevertheless concluded that the Saltses had waived their right to conflict-free representation.

This determination rested solely on the earlier “recollections” and “averments” of the trial judge and, somewhat incredibly, counsel for the State. Of course, the State’s position on the matter has also changed; it now concedes that “the state court erred” in its waiver determination. Given the lack of any supporting evidence in the record and the trial judge’s about-face on the issue, this conclusion was an unreasonable determination of fact.

The Mississippi court’s waiver determination was also contrary to law: specifically, the “high standard] of proof for the waiver of constitutional rights [set forth by the Supreme Court in] Johnson v. Zerbst.” Indeed, in Zerbst, the Court reiterated that courts are to “ ‘indulge every reasonable presumption against waiver’ of fundamental constitutional rights.” In finding a waiver based on the “recollections” of the trial judge—which he later recanted—with no corroborating record evidence, the state appeals court neglected the Supreme Court’s command to indulge “every reasonable presumption” against waiver. B.

The state court’s denial of the Saltses’ claim was contrary to clearly established law. In the alternative, the state appeals court denied the Saltses’ joint-representation claim for failure to demonstrate an actual conflict of interest. The court applied Mississippi law, concluding that “a court need conduct an inquiry into the propriety of a joint representation only when an actual conflict has been shown.” The state court thus applied a rule that directly conflicts with controlling Supreme Court precedent, rendering its decision contrary to law under 28 U.S.C. § 2254(d)(1).

Under the correct rule, the Saltses are entitled to relief on their joint-representation ineffective-assistance claim.

(1) The state court’s rule ivas contrary to Supreme Court precedent. To begin, we consider the Supreme Court’s seminal multiple-representations precedents: Holloway v. Arkansas and Cuyler v. Sullivan.

The Court’s decision in Holloway represents “an automatic reversal rule” that applies “where counsel is forced to represent codefendants over his timely objection, unless the trial court has determined that there is no conflict.” In other words, where trial counsel timely raises a possible conflict of interest to the trial court, reversal is automatic where the judge “fail[s] to either appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel.” The Supreme Court subsequently clarified, however, that Holloway’s automatic reversal rule does not apply in situations where defense counsel fails to timely object to a multiple representation.

In Cuyler v. Sullivan, the Supreme Court “declined to extend Holloway’s automatic reversal rule” to a situation where “[neither counsel nor anyone else objected to the multiple representation.” Indeed, “absent objection, a defendant must demonstrate that ‘a conflict of interest actually affected the adequacy of his representation.’ ” Here, the state appeals court, contrary to Holloway, held that a trial court need only inquire into the propriety of a joint representation when an actual conflict has been shown.

We note that the court did not decline to apply Holloway because it found that Waide’s objection was untimely or made for dilatory purposes. Rather, it held that, categorically, “a court need conduct an inquiry into the propriety of a joint representation only when an actual conflict has been shown.” The state appeals court’s decision was contrary to law because it wrongly held that a defendant must always show actual conflict, even where the trial court failed to investigate counsel’s timely motion.

In other words, the state court held that it is never sufficient for a defendant to bring to the court’s attention a potential conflict; he must always concretely show an actual conflict. This stated rule directly conflicts with the Supreme Court’s decision in Holloway, which addresses itself to the possibility or potential for conflict.

The Holloway Court spoke of the trial judge’s duty “to refrain from embarrassing counsel in the defense of an accused by insisting, or indeed, even suggesting, that counsel undertake to concurrently represent interests which might diverge from those of his first client, when the possibility of that divergence is brought home to the court.” The Supreme Court’s subsequent discussions of Holloway demonstrate that its automatic reversal rule does not require a showing of actual conflict.

Indeed, in both Cuyler and Mickens, the Court reiterated the Holloway rule in all its simplicity: “Holloway requires state trial courts to investigate timely objections to multiple representation.” The Court in Cuyler did explain that, absent a timely objection to a multiple representation, “nothing ... requires state courts themselves to initiate inquiries into the propriety of multiple representations in every case.” But this holding does nothing to alter the Holloway rule—reiterated by the Court in Mick-ens—which “creates an automatic reversal rule ... where defense counsel is forced to represent codefendants over his timely objection, unless the trial court has determined that there is no conflict.” In neither of these subsequent decisions did the Supreme Court hold that the Holloway rule only operates on a showing of actual conflict.

This makes sense: to hold otherwise would vitiate the. protections of Holloway's per se rule. The Holloway Court recognized that, where a trial court has failed to investigate a potential conflict of interest brought to its attention, the record may not conclusively reflect that conflict.

By failing to investigate a potential conflict, “the trial judge cut[s] off any opportunity of defense counsel to do more than make conclusory representations.” In other words, the trial court’s failure to investigate potential conflicts timely brought to its attention may leave the record devoid of specific and particularized evidence of such a conflict. The State nevertheless argues that the state trial court implicitly applied Holloway, and found it inapplicable because it found Waide’s motion to be dilatory.

Consequently, the State argues, we owe deference to that decision, and may only grant habeas if it involved an unreasonable application of Holloway. We do not agree. First, it is not at all clear that the trial court’s failure to investigate the potential conflict rested on a finding that Waide’s motion was dilatory. Rather, the judge believed, incorrectly, that he had previously addressed the conflict and the Saltses had waived any objection to conflict.

At the hearing on Waide’s motion, the parties disputed the support in the record for such a waiver and Waide requested that his clients be put on the stand to testify, at which point the judge stated: Now, if we’re going to have a hearing, we’re going to put Mr. Thorne on the stand, too, and find out what the discussion was. My recollection is that [the Saltses’ waiver of this conflict of interest] was aired in chambers and in open court, and this is another of the last-minute tactics—I’m not going to grant a severance, or a continuance, or anything else. We’re going to try it.

As Thorne, the Saltses’ previous counsel, was not present, any such hearing would require significant delay. Further, even if the oblique reference to “last-minute tactics” constitutes a finding that Waide’s motion was made for dilatory purposes, this conclusion rests on an unreasonable determination of facts. The reason he believed the motion to have been a “last-minute tactic” was that he believed he had already addressed the issue. As noted above, the record is wholly devoid of evidence of this fact, and the judge recanted this “recollection” after the trial concluded.

Second, AEDPA directs this court to consider a state court’s “decision.” It is well settled that we look to the “last reasoned opinion,” and where a higher state court has ruled on a petitioner’s motion on grounds different than those of the lower court, we review the higher court’s decision alone. Here, regardless of the ground upon which the trial court denied petitioner’s claim, the state appeals court, as noted above, dismissed that claim because it erroneously concluded that a petitioner must always show an actual conflict. Accordingly, we review only the state appeals court’s decision.

As stated above, we find that decision was contrary to established Supreme Court precedent. In sum, by applying the rule it did—that “a court need conduct an inquiry into the propriety of a joint representation only when an actual conflict has been shown”— the state appeals court applied a rule directly contrary to Holloway’s imperative that state trial courts investigate timely objections to joint representation.

In other words, the state court elevated Cuyler to a universal standard, to the detriment of Holloway, “applying] a rule that contradicts the governing law set forth in [the Supreme Court’s] cases.” This is the very definition, under AEDPA, of the phrase “contrary to clearly established precedent.”

(2) Standard of review for relief. Next, the Court must determine the standard by which to determine whether the Saltses are entitled to relief under Holloway. The dissent argues that Neal v. Puckett directs, under the guise of confining our review to the state court’s decision, that we ignore the state appeals court’s application of law contrary to Supreme Court precedent, and instead presume the state appeals court identified and applied Holloway. The Court is then to determine whether it can imagine any possible reasonable analysis of that precedent that could support the state appeals court’s decision.

Neal, however, considered a state court of appeals’s decision identifying the correct legal rule and the question was solely whether the state court was unreasonable in its application of that rule. Neal does not speak to the standard of review where a state court applies erroneous law. Nor can Neal be read beyond the situation before the Court there, to stand for the proposition that, to grant habeas relief, the habeas court must always determine that the relevant legal tests could not have been reasonably applied by the state court to deny relief.

Such a reading would require, for example, a habeas court to assume a state court applied legal rules it did not, and then ask whether such rules could still reasonably support the result. That reading, however, would run afoul of the Supreme Court’s command that, where a state court does not apply a legal test, “our review is not circumscribed by a state court conclusion.” Indeed, applying Neal to the case before us would ignore the text of AEDPA.

The statute states habeas relief shall not be granted unless the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law .... ” The Supreme Court, in the seminal AEDPA case of Williams v. Taylor, stressed the need to provide these two grounds with separate and independent meaning. The Saltses have shown that the state appeals court’s decision was “contrary to” clearly established Federal law. That is sufficient to remove § 2254(d)(l)’s bar to relief.

They need not also show that the state appeals court’s decision involved an “unreasonable application” of such law. Accordingly, as the Saltses have demonstrated that the Mississippi Court of Appeal’s decision was “contrary to” established Supreme Court precedent, they may obtain relief if they can show, on de novo review, that they are “in custody in violation of the Constitution or laws or treaties of the United States.”

(3) The Saltses are entitled to relief under Holloway. Holloway’s rule—not Cuyle'ds actual-conflict standard—controls the Saltses’ joint-representation claim in this case because the Saltses timely objected to their joint representation. Their newly retained attorney, Mr. Waide, objected to the representation before trial began, before the jury was selected and sworn. This objection was not untimely or made for dilatory purposes, and it was sufficient to trigger the trial court’s duty to investigate the propriety of the joint representation.

Because the trial court failed to investigate, reversal is required under Holloway. The Saltses did not retain attorney Waide until several days before their trial was scheduled to begin. The timing of their retention of Waide coincided with their previous counsel announcing to the court that he was not prepared to try the case. On the Monday morning trial was scheduled to begin, after spending the weekend reviewing the Saltses’ case, Waide moved to dismiss the charges against them, or in the alternative, to continue the trial setting so they could retain separate counsel.

The motion informed the court of “an obvious conflict of interest between the Defendants,” given that they both denied any knowledge of the alleged embezzlement. Further, the motion explained that “during various time periods one Defendant operated the business and during other times the other Defendant operated the business.” Waide elaborated on this motion in open court the morning trial was scheduled to begin: Your honor, the indictment in this case charges embezzlement. It charges both defendants with embezzlement.

There’s extensive discovery in the case, boxes of materials, but I can’t see anything that identifies which defendant is charged with embezzlement at which times. And I also know that the proof is going to show that at various years, it goes on for 17 years, but at various times one of the defendants wouldn’t even been working in the business during some of those times. There’s an obvious conflict of interest. It’s obvious that one attorney should represent one defendant and should argue that they haven’t shown that my defendant was even working there at that particular time.

So there’s an obvious conflict of interest, and the prosecution knowing this case has gone on for 17 years and investigating it would have certainly known that from time to time which one of them was active in the business. And one lawyer can’t very well point the finger at one defendant and not at the other one and say, Well my—for example, I might say the last three or four years, Mr. Salts has been working outside the business, hasn’t even been involved in the business. But its hard to make that argument representing both.

Waide’s motion to the trial court was sufficiently detailed to alert the court to a potential conflict of interest, thus triggering the trial judge’s duty under Holloway to either allow for separate counsel or investigate further to ensure no conflict existed. The State urges that Waide’s motion did not trigger a duty to investigate under Holloway because the motion was not timely.

It is true that the Supreme Court in Holloway clarified that “[w]hen an untimely motion for separate counsel is made, for dilatory purposes, our holding does not impair the trial court’s ability to deal with counsel who result to such tactics.” But the record here does not support a conclusion that Waide’s motion was “an untimely motion ... made for dilatory purposes.” The Supreme Court in Holloway did not explicitly define the phrase “untimely motion ... made for dilatory purposes.” However, the Court did note that, in that case, all of the defendant’s objections to the joint representation were timely, even a motion made on the morning trial was scheduled to begin, before the jury was empaneled.

The motion in Holloway is difficult to distinguish from Waide’s motion in this case. Like the defendant’s attorney in Holloway, Waide objected the morning trial was scheduled to begin, before the jury was selected and sworn. For Waide, this was the earliest opportunity he had to object to the joint representation.

Perhaps more important than the precise timing of Waide’s motion in this case is that there is no indication whatever that it was “made for dilatory purposes.” Waide objected to the Saltses’ joint representation at the earliest possible opportunity: when he appeared in court the Monday after the Saltses retained him. The record here indicates that the Saltses retained Waide on Thursday, and that he spent the weekend reviewing their case, including seventeen boxes of documents.

Waide determined promptly that the Salts-es had conflicting interests and brought this conflict to the court’s attention when it opened for business Monday morning. Moreover, although the Saltses were represented for a two-year period prior to trial, in which time their previous counsel filed a number of continuances, there is no indication in the record that the Saltses themselves were the source of the delay. Rather, the record reflects the delays were largely the result of illnesses in the family of the Saltses’s previous counsel and courthouse construction.

Finally, there is no indication that Waide’s objection was meritless or was based on a misrepresentation of facts. Our conclusion that Waide’s objection was not “untimely ... [or] made for dilatory purposes” should not be read to suggest that an objection to a joint representation made in the hours before trial begins will always pass muster under Holloway. Rather, our holding reflects the unique circumstances surrounding this case.

The Saltses retained Waide at the last minute, after their previous counsel announced to the court that he was unprepared to try their case on account of serious illness in his family. Our conclusion that Waide’s motion was not made for dilatory purposes might be different if he himself had represented the Saltses for longer, and yet had waited until the last minute to object to the joint representation, or where the record reflects that the defendants themselves have been the cause of delay.

In sum, the state court’s decision was contrary to law because it applied a rule that contradicts the governing law set forth in the Supreme Court’s cases. Under the proper rule, the Saltses are entitled to relief on their ineffective-assistance claim stemming from joint representation. We thus AFFIRM the district court’s conditional grant of habeas relief, vacating the Saltses’ convictions and providing the State a window of 120 days in which to commence a new prosecution. . The following facts relating to the Saltses’ embezzlement conviction appear in Salts v. State, 984 So.2d 1050, 1055 (Miss.App.2008). .

The state-court trial record indicates that the court held oral argument on the motion immediately before voir dire. . Salts, 984 So.2d 1050. . The State conceded in its answer that the Saltses exhausted their state remedies, and therefore waived objection on exhaustion grounds. See 28 U.S.C. § 2254(b)(1), (3); Bledsue v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999). The State’s waiver is understandable, as, contrary to the dissent’s assertion, the Saltses discussed the issues raised in their petition, including Holloway v.

Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), in their briefs to the state trial court and court of appeals. . Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir.2010) (quoting Harrison v. Quarterman, 496 F.3d 419, 423 (5th Cir.2007)). . See 28 U.S.C. § 2254. . 28 U.S.C. § 2254(d)(1), (2). . Wallace v. Quarterman, 516 F.3d 351, 354 (5th Cir.2008) (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)) (alteration in Wallace). . Taylor, 529 U.S. at 406, 120 S.Ct. 1495. . Id. at 407, 120 S.Ct. 1495. . Valdez v.

Cockrell, 274 F.3d 941, 947 (5th Cir.2001) (citing 28 U.S.C. § 2254(e)(1)). . See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir.1996) (en banc). . We review enlargements of time by the district court for abuse of discretion. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 161 (5th Cir.2006). . Fed.R.Civ.P. 6(b)(1)(B). . Wright & Miller, Federal Practice and Procedure § 1165 (collecting cases, including a number of Fifth Circuit cases). . Id. . Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (quoting Holloway v.

Arkansas, 435 U.S. 475, 490, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)). . Holloway, 435 U.S. at 490, 98 S.Ct. 1173. . Id. at 482, 98 S.Ct. 1173. . 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). . 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). . See 28 U.S.C. § 2254(d)(2). . Salts, 984 So.2d at 1061 (discussing state trial-court record). . Id. at 1062 ("A diligent search of the record has not revealed whether any discussion of any conflict of interest was made or waived in court.”). . Berghuis v. Thompkins, — U.S.-, 130 S.Ct. 2250, 2268, 176 L.Ed.2d 1098 (2010) (citing Johnson v.

Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). . Zerbst, 304 U.S. at 464, 58 S.Ct. 1019 (citing Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177 (1937); Hodges v. Easton, 106 U.S. 408, 412, 1 S.Ct. 307, 27 L.Ed. 169 (1882)). . Salts, 984 So.2d at 1063. . Mickens v. Taylor, 535 U.S. 162, 168, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (discussing the Court’s earlier decision in Holloway, 435 U.S. 475, 98 S.Ct. 1173). .

See Holloway, 435 U.S. at 484, 98 S.Ct. 1173 ("The judge then failed either to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel. We hold that the failure, in the face of the representations made by counsel weeks before trial and again before the jury was empaneled, deprived petitioners of the guarantee of 'assistance of counsel.’ ”). . Mickens, 535 U.S. at 168, 122 S.Ct. 1237 (discussing Cuyler, 446 U.S. at 348-49, 100 S.Ct. 1708). . Id. (discussing Cuyler, 446 U.S. at 348-49, 100 S.Ct. 1708) .

See Salts, 984 So.2d at 1063 ("Because the Saltses never showed an actual conflict of interest, there was no need for any inquiry by the trial court into the propriety of joint representation.”). . Salts, 984 So.2d at 1063 (emphasis added). . The dissent objects to this characterization of the rule applied by the state appeals court. The dissent, however, would read the state appeals court's opinion to state what it does not, rendering the state court’s use of "only” a nullity. Indeed, even the dissent’s characterization of the state appeals court’s rule would be problematic.

Cuyler, the Supreme Court case the dissent presumes the state appeals court applied, requires a showing of actual conflict when no objection, and thus no inquiry, occurred. See Cuyler, 446 U.S. at 348-50, 100 S.Ct. 1708. When such a conflict is shown, reversal is required. Id. The state court of appeals, however, stated that an inquiry need only occur when an actual conflict was shown. Of course, if an actual conflict is shown, then, under Cuyler, the defendants have demonstrated a Sixth Amendment right to separate counsel. An inquiry at that point would serve no purpose. .

Holloway, 435 U.S. at 484-85, 98 S.Ct. 1173 (quoting Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) (emphasis from Holloway omitted, new emphasis added)). . Cuyler, 446 U.S. at 346, 100 S.Ct. 1708. . Id. at 347, 100 S.Ct. 1708 (emphasis added). . Mickens, 535 U.S. at 168, 122 S.Ct. 1237 (emphasis added). . Holloway, 435 U.S. at 484 n. 7, 98 S.Ct. 1173. . 28 U.S.C. § 2254(d). . See Ylst. v.

Nunnemaker, 501 U.S. 797, 801, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (finding lower court’s dismissal of claim ■ on grounds of procedural default not "immortal” where higher court reaches the merits of a federal claim). . Taylor, 529 U.S. at 405, 120 S.Ct. 1495. . Id. . 286 F.3d 230 (5th Cir.2002) (en banc). . See id. at 246. . See Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (holding, where state court analyzed only inadequate performance prong of Strickland, Court's review of prejudice prong was de novo); see also Rompilla v.

Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (holding, "[bjecause the state courts found the representation adequate, they never reached the issue of prejudice ..., and so we examine this element of Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] claim de novo ...”); Pondexter v. Quarterman, 537 F.3d 511, 523-24 (5th Cir.2008) (finding Wiggins and Rompilla changed law after Fifth Circuit had previously reversed district court, relying on Neal v. Puckett, for performing de novo review, rendering law-of-the-case doctrine inapplicable).

Of course, where a state court summarily denies a petitioner’s motion, and provides no statement of its reasons, "the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief.” See Harrington v. Richter, - U.S. -, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). Here, however, the state court provided its reason, and its reason was contrary to established Supreme Court precedent. . 28 U.S.C. § 2254(d)(1) (emphasis added). . See 529 U.S. at 404, 120 S.Ct. 1495. .

See Williams, 529 U.S. at 412, 120 S.Ct. 1495 ("Under § 2254(d)(1), the writ may issue only if one of the two following conditions is satisfied—the state-court adjudication resulted in a decision that (1) 'was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) 'involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States’ " (alteration in original)). . 28 U.S.C. § 2254(a); see also Williams, 529 U.S. at 395-96, 120 S.Ct. 1495 (analyzing petitioner’s Strickland claim de novo after determining state court’s decision was “contrary to” and "involved an unreasonable application of” Supreme Court precedent); Barker v.

Fleming, 423 F.3d 1085, 1094-95 (9th Cir.2005) (analyzing Brady claim de novo after determining state court's decision was contrary to Supreme Court precedent), cert. denied, 547 U.S. 1138, 126 S.Ct. 2041, 164 L.Ed.2d 796. . The district court considered at length another objection to the joint representation, this one filed by attorney Farese, the Saltses' original trial counsel.

Shortly after the proceedings began, Farese moved to withdraw from the representation, citing, without elaboration, “two irreconcilable conflicts.” The district court found that this motion was sufficient to trigger the trial court's duty to investigate under Holloway. We need not consider this issue because we conclude that Waide's pretrial motion was independently sufficient. .

The state does not argue that this conversation on the morning of trial was itself a Holloway hearing, nor did the state appeals court conclude that this pretrial conversation was sufficient "investigation” of the potential conflict under Holloway. . Holloway, 435 U.S. at 486-87, 98 S.Ct. 1173 (emphasis added). . As there is no dispute of fact pertaining to the timing of or motive for Waide’s motion, there is no need to accord deference to any state-court findings of fact as to such. Cf.

Valdez, 274 F.3d at 948 & n. 11 (noting .§ 2254(e)(l)’s presumption of correctness applies to state court findings of fact and "unarticulated findings which are necessary to the state courts conclusion of mixed law and fact"). The question here is whether the undisputed timing of Waide’s motion was legally significant under Holloway, a question of law which, as stated above, we review here de novo. See Nakimbugwe v.

Gonzales, 475 F.3d 281, 284 (5th Cir.2007) (noting, although "[m]any determinations of timeliness are based on ... assessment of facts and circumstances," determinations of timeliness grounded in legal construction are questions of law). . In Holloway, the Supreme Court described both of defense counsel’s motions as “timely.” 435 U.S. at 476, 98 S.Ct. 1173 (“Petitioners, codefendants at trial, made timely motions for appointment of separate counsel ...."). One of the motions was made several weeks before trial and one made "before the jury was empaneled.” Holloway, 435 U.S. at 484, 98 S.Ct. 1173. .

The State makes much of the fact that Waide’s motion asked for a dismissal in the alternative to a continuance because "a jury ha[d] already been called." It is unclear why Waide believed it was significant that potential jurors had been called for duty, given that jury selection had not begun. We do not find this fact significant to our Holloway analysis. . In this aspect, we agree with the state court. See Salts, 984 So.2d at 1058 (noting “the record reflects that the Saltses were not personally the source of the multiple continuances”). .

See Holloway, 435 U.S. at 486 n. 10, 98 S.Ct. 1173 (noting, although counsel filed dilatory motions, the "courts have abundant power to deal with attorneys who misrepresent facts”). . We decline to reach the claim raised in the Saltses' cross-appeal—an ineffective-assistance claim stemming from the trial court's denial of a continuance. Because we affirm the district court’s grant of relief on the Salts-es' multiple-representation claim, we need not consider their alternative claim.