Houston v. Schomig, 2011 U.S. App. LEXIS 4481

Houston appeals an evidentiary ruling on remand to assess whether his counsel’s performance was adversely affected by a potential conflict of interest.
The possible conflict arose because Jorgenson, Houston’s trial counsel, was in the same Public Defender’s Office that previously represented Chadwick, a key witness against Houston.
Jorgenson did not personally represent Chadwick; Chadwick was represented by another lawyer in the same office.
On remand, the district court found Houston was not adversely affected by the prior representation, and the Ninth Circuit reviews that finding de novo for legal conclusions and for clear-error review of factual findings.
Houston argues several failures by Jorgenson, including a conflicted motion to withdraw, inadequate impeachment of Chadwick, and failure to obtain favorable credibility factors.
The court affirmed, holding no adverse effect and no prejudice established, and thus no Sixth Amendment violation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there an adverse effect from the office’s prior representation?	Houston	Schomig/State	No adverse effect found
Did Jorgenson’s conflict affect cross-examination of Chadwick?	Houston	Schomig/State	No impact on cross-examination; strategy remained viable
Did Jorgenson’s failures amount to ineffective assistance under Strickland?	Houston	Schomig/State	No prejudice under Strickland
Were additional alleged failures (parole status, polygraph, withdrawal motion) prejudicial?	Houston	Schomig/State	Not prejudicial; not admissible or not material

Alberni v. McDaniel, 458 F.3d 860 (9th Cir. 2006) (actual conflict must affect performance)
Mickens v. Taylor, 535 U.S. 162 (1982) (conflict must affect counsel's performance)
Howard v. Clark, 608 F.3d 563 (9th Cir. 2010) (de novo review of legal conclusions; clear-error for facts)
Strickland v. Washington, 466 U.S. 668 (1984) (establishing prejudice must be shown for ineffective assistance)