Houston v. Schomig

1076 dence that knew

police knowledge Murphy had advance Lt. whether Cas- applied they search condition before con- eres’s had been offense committed See, e.g., ducted the Samson v. search. 1, January 1997. See Cal. Pen. 5, California, 547 856 n. 126 U.S. 3067(c). § Code Because the record does (2006) 250 (noting 165 L.Ed.2d Murphy not establish that Lt. was aware precedent ... an “[u]nder California applied § 3067 Cal. Pen.Code before reasonably officer would act in con- car, he ordered the of Caseres’s search ducting suspicionless a search absent justified by search is not the state’s inter- knowledge person stopped for supervising est in probationers. See Fitz- added); parolee.”) (emphasis search is a cannot, gerald, F.Supp.2d 485 at 1142. We Baca, Moreno v. therefore, uphold parole the search as a (“[P]olice Cir.2005) officers cannot retroac- search. tively justify suspicionless a search ... on discovery basis of after-the-fact CONCLUSION condition.”); Fitzgerald ... government Because the has failed to City F.Supp.2d Los Angeles, (C.D.Cal.2007) (noting exceptions “advance demonstrate that any to the knowledge parolee’s of a status is critical probable requirement apply, cause we hold constitutionality of a suspicionless that the car search of Caseres’s without P., search of a In re parolee”); Jaime 40 probable cause violated the Fourth 128, 139, Cal.Rptr.3d Cal.4th 146 Amendment. The evidence obtained as (noting P.3d 965 where the result of the unlawful search must there- “arresting had neither officer reasonable fore be suppressed. suspicion activity of criminal nor advance reverse the district court’s denial of knowledge might search condition that the motion to suppress remand for search,” justified have totality “[t]he consistent with proceedings very these amounts to circumstances little opinion. search”) justify and does not the officer’s added); Sanders, (emphasis People v. REVERSED and REMANDED. 318, 332-33, Cal.4th 2 Cal.Rptr.3d 3067(a) Moreover, §

P.3d 496

search applies parolees condition

whose offense committed on or “was after

January 1997.” Cal. Pen.Code 3067(c). § HOUSTON, Petitioner-Appellant, Steve Here, provides the record an insufficient basis for us to find that the search of SCHOMIG, Respondent- James M. pa- Caseres’s car was constitutional as a Appellee. Although role Lt. Murphy search. testi- fied that he was aware Caseres was on No. 06-15523. parole prior ordering the search of his of Appeals, United States Court vehicle, government failed to establish Ninth Circuit. when, that Lt. Murphy knew and what state, Caseres committed the crime Argued and Feb. Submitted 2008. which he paroled. There is no evi- July Filed dence that Murphy Lt. knew Caseres was parolee California, State 3067(a) whom Nor applied. is there evi- Traum,

Anne R. Assistant Federal Pub- Defender, NV, Vegas, lic peti- Las for the tioner-appellant. Hulse,

Rene L. Deputy Attorney Senior General, NV, Vegas, Las for respon- dent-appellee. CANBY, JR.,

Before: WILLIAM C. JR., SMITH, MILAN D. Judges, Circuit LARSON, and STEPHEN G. District Judge.* Opinion by LARSON; Judge Partial by Concurrence and Partial Dissent Judge SMITH, MILAN D. JR.

LARSON, Judge: District Houston, Steve a Nevada state prisoner, appeals from the district court’s judgment denying petition for habeas corpus pur- suant to 28 U.S.C. 2254. Houston’s ha- petition beas challenges jury his 2000 trial conviction for conspiracy commit mur- der, attempted three counts murder with deadly weapon, use of a and three counts of discharging firearm out of a motor vehicle. contends his Sixth Amend-

ment rights were violated when the state trial court denied his motion to continue the trial represented so he could be by counsel, retained appointed and denied his counsel’s motion to withdraw based on a Larson, California, *The Stephen Honorable G. by designation. United sitting Judge States District Central District (9th Cir.2004). from the Clark F.3d Neva- arising interest conflict of represen- County Defender’s Public da Court’s affirmance direct prosecution’s star witness. tation of the opinion is the last rele- appeal reasoned court’s trial denial We hold vant to Houston’s claims. did continue the trial

Houston’s motion to II and that not violate the Sixth Amendment rejection Court’s the Nevada first consider whether Houston’s to, contrary nor an this claim was neither rights Sixth Amendment were violated of, law. application federal unreasonable denial court’s motion and remand for We vacate continue the trial. whether Houston’s hearing to determine To establish a Sixth Amendment viola counsel violated. right to conflict-free was tion based on the denial of a motion to continue, Houston must show that the trial through “un court abused its discretion review de novo the denial reasoning arbitrary upon and ‘insistence by a court. Polk v. habeas relief district justifiable in the of a expeditiousness face (9th Cir.2007). Sandoval, 903, 503 F.3d 909 ” request delay.’ Morris v. Slappy, by governed § 2254 is petition Houston’s 11-12, 461 U.S. S.Ct. 75 103 and Death the Anti-Terrorism Effective (1983) (citing Ungar L.Ed.2d 610 v. Saraf (“AEDPA”). AEDPA, Penalty Act Under ite, 575, 589, 841, 11 376 S.Ct. U.S. 84 only if a state is to relief prisoner entitled (1964)). L.Ed.2d 921 “resulted in a deci ruling the state court to, or contrary sion that was involved supports The record the state of, application clearly estab unreasonable act judge court’s conclusion law, by the Federal as determined lished in denying within broad ed his discretion States,” or of the United Court Houston’s motion for a continuance to re “was on an unreasonable determina based he confirmed Specifically, tain counsel. light tion of the facts in of the evidence trial, proceed counsel was able to to proceeding.” in the court presented State in diligence timely Houston’s re evaluated 2254(d). § A deci state court’s U.S.C. counsel, private weighed and taining ap “contrary federal if it sion to” law have impact may a continuance potential law one set plies rule of different from had on the victims and witnesses. holdings makes forth in Court or sought just days four be continuance was “mate based on different determination begin. trial was scheduled to See fore rially Earp facts.” v. Or indistinguishable 13-15, at 103 S.Ct. 1610 Slappy, 461 U.S. (9th Cir.2005) noski, factors to (acknowledging appropriate (citing Taylor, Williams v. 529 U.S. justice, include administration consider 405-06, 146 L.Ed.2d 389 120 S.Ct. witnesses, bad difficulty assembling in (2000)). application’ “The ‘unreasonable concerns). tactics, delaying faith victims’ requires clause the state court decision Moreover, the motion continue or be more than incorrect erroneous.” on Houston’s desire to retain solely based Andrade, Lockyer 538 U.S. he was unsatisfied with counsel because (holding 155 L.Ed.2d trial, preparation for defender’s “objectively must be the state decision any potential conflict interest. unreasonable”). AEDPA applying When Indeed, was not dis potential standards, rea this court reviews the “last until after motion continue covered by addressing issue soned decision” the Nevada Su- Accordingly, Ignacio, was denied. state court. See Robinson preme aggressor. judge told the application Slappy Jorgenson Court’s denial of claim was not relief on this “ob his be going “heart is with Mr. Chad- jectively See 28 unreasonable.” U.S.C. wick,” and that Chadwick he believed had Andrade, 2254(d)(1); 538 U.S. not committed crimes earlier S.Ct. 1166. case, for which had Chadwick been con- victed prison and served a sentence. Such Ill conviction, wrongful Jorgenson explained, Next, we consider whether Houston’s may given have Chadwick motive to act right counsel to conflict-free was violated. aggressor as the Houston or toward to lie revenge. order to convict Houston out of A Jorgenson expressed concern un- Attorney Craig appoint- examination, der may his cross County ed from the Clark Public Defend- expose admit facts which him against er’s office to defend Houston impact criminal liability sta- charges that fired shots from he his car tus. into a car driven Terrance Chadwick judge denied the motion to with- occupied by two of Chadwick’s sisters. draw, finding conflict that no actual existed Both the agreed state and the defense Jorgenson personally because rep- had there of history was a “bad blood” between resented the previous pro- Chadwick in family. Houston and Chadwick’s This his- ceeding. judge The found that tory included the murder of Chadwick’s any potential Chadwick had waived conflict grandmother shooting and the of his may brother, by waiving have existed his attor- for which was Houston tried and ney-client acquitted. Notably, privilege. the trial court require did not seek nor a conflict jury After empaneled, had been Jor- waiver from Houston. genson discovered for the first time that County the Clark Public Defender’s office trial, At Chadwick was the represented had victim key prose- who testified that Houston fired shots into witness, Chadwick, factually- cution in a occupied the van by Chadwick and his related case Chadwick charging with mul- such, credibility sisters. As para- his tiple attempted counts of murder with the mount. use of deadly weapon. Ultimately, argues that the Clark County pled firing Chadwick guilty gun into a Public prior representation Defender’s of house.1 Chadwick in a factually-related case creat- morning, The next before opening argu- conflict, ed a adversely which affected Jor- ments, Jorgenson immediately moved to genson’s performance by trial limiting his withdraw from case Houston’s because he impeachment through pri- his felt conflicted prior repre- his office’s conviction, status, his and his sentation of Jorgenson Chadwick. ex- polygraph failed exam. plained that involving the earlier case alone, Based on the trial record the Ne- “tied, factually, Chadwick was to the Supreme vada Court relief on theory state’s denied of retribution and the mo- tive” in claim Jorgenson personal- Houston’s case and that because had not Houston’s theory Chadwick, implicated ly represented Chadwick as the Chadwick had lions, court, 1. It is not clear suggest from record whether as an officer of the shooting Chadwick was convicted into Houston was the victim. intended house, Jorgenson's representa- Houston’s but further; investigate ignoring counsel’s attorney-client privilege, his waived involve representation did not objection mandates automatic reversal The case.2 as Houston’s the same facts Holloway v. resulting conviction. See mention made no Court Arkansas, 435 U.S. 98 S.Ct. a waiv- judge’s trial failure obtain can also L.Ed.2d 426 Conflicts subjec- Jorgenson’s from Houston or er representation, par from arise successive was con- representation tive belief that relationship ticularly when a substantial flicted. cases, such that exists between the acknowledged district court representa of the two “factual contexts re- case “somewhat Chadwick’s earlier tions are similar or related.” Trone but con- prosecution, to Houston’s lated” Smith, Cir.1980); F.2d performed as cluded McCormick, Fitzpatrick see attorney With- would have. non-conflicted (9th Cir.1989). The Su failure discussing the court’s out Court, however, has preme open left Houston, the district a waiver from obtain conflicts in successive question whether failed denied relief because Houston court attorney’s that affect an that a demonstrating present evidence require showing preju performance per- adversely affected counsel’s Mickens, See 535 U.S. dice reversal. formance. 176, 122 B case, In this after Chadwick waived that a Court has held judge attorney-client privilege, the trial constitutional criminal defendant existed, conflict without concluded that no of conflict-free counsel.

right to assistance impact prior into the inquiring ever the Washington, v. U.S. 466 Strickland may have had on Houston (1984). 688, 104 80 L.Ed.2d 674 S.Ct. Indeed, Jorgenson’s performance. or on counsel’s the stems from Where conflict judge saw “no conflict here whatsoev the defendants, the multiple representation of “how Houston and failed to see Mr. er” actual establish that an petitioner “must Because right anything.” has a to waive adversely affected conflict interest was Houston’s Sulli conflict that existed lawyer’s performance.” Cuyler v. van, assert, 64 trial 446 100 U.S. S.Ct. to waive or either (1980). The Court Supreme L.Ed.2d 333 focus on Chadwick judge’s exclusive by the “actual conflict” has defined an inquiry rendering the conflict misplaced, counsel’s potential a conflict had on effect Terhune, 250 v. inadequate. See Lockhart U.S. Taylor, Mickens v. 535 performance. Cir.2001). (9th 1223, 1232-1233 Simi F.3d 162, 171, 152 L.Ed.2d S.Ct. failed to Court larly, Nevada act Jorgenson of whether reach issue client, or adversely to his current ed timely Where defense counsel prejudiced Hous performance whether joint a points out conflict interest required ton. the trial court is representation, Smith, 994, 998 prosecution and facts.” See Trone Because earlier

2. Chadwick’s (9th Cir.1980) present ("Substantiality is many same involved of the Houston’s case representations two ongoing feud the factual contexts parties and from an resulted related.”); families, Fitzpatrick disagree see also respectfully are similar or we between McCormick, Cir. with the Court’s determina- 1989). the same tion that the "did not involve cases status, parole among The limited record before us things. reveals other Id. Jorgenson expressed concern over the record Because was incom- status, jeopardizing Chadwick’s plete, evidentiary we remanded for an stated his belief that Chadwick had been hearing to determine whether the attor- wrongfully in a convicted case related to ney’s performance adversely affected ongoing at issue in feud Houston’s by prior representation. Id. at 872-73. case, judge and told the his “heart is argues Chadwick’s going be with Mr. Chadwick.” On these conviction, parole poly- status failed facts, the trial judge should have conduct- graph exam available to Jorgenson were complete evidentiary ed more hearing on impeach credibility, Chadwick’s but that potential stands, As it conflict. now Jorgenson not chose to use them. As the record is insufficient for us to deter- support, Houston offers number of exam- mine whether an actual of interest ples in which similar evidence was admit- existed, Jorgenson or whether un- labored through exceptions ted various to Nevada’s a perceived der conflict and limited his insists, The state rules. cross examination of Chadwick as result. agree, the dissent would that such evi- law, dence was inadmissable under Nevada C Jorgenson so could have used this McDaniel, proceedings in Alberni v. information during Chadwick’s cross exam- (9th Cir.2006), 458 F.3d 860 cert. de But, stated, ination.3 already as we have —nied, -, U.S. credibility Chadwick’s was a particularly L.Ed.2d 333 are instructive. In important aspect certainly case and case, public Buchanan repre defender central to Houston’s defense. areWe victim-witness, Flamm, sented mindful speculate not to about Jorgenson’s representing Alberni. Id. at 867-68. The strategy, judge nor whether the trial drug earlier case exchange involved be impeachment have admitted the evi- Flamm tween and Alberni that led to hos dence in important this case. What is tilities, resulting later the shooting of whether represen- modified his another man. Id. Buchanan defended Al- tation way adversely of Houston in a against charges berni that he murdered 871; performance, affected his see id. at this other man and Flamm was called as Lockhart, at and whether eyewitness an to the altercation. Id. Houston; i.e., this prejudiced effect wheth- Counsel told the he felt judge by conflicted er there is “a probability reasonable prior representation the and therefore un but errors, for unprofessional counsel’s the able cross examine his former client. result proceeding of the would have been at 868. judge Id. obtained a waiver of Strickland, different.” 466 U.S. at attorney-client privilege Flamm, the from incomplete not from S.Ct. 2052. the but Alberni. Id. at On record 868-69. Dur trial, us, ing before impeach Buchanan failed to we cannot make that determina- through Flamm conviction and tion. determinative,

3. While noting attorney not it is worth perform- that Alberni's curtailed his Albemi, evidentiary hearing that after the perceived in ance because of a conflict. See also district Mayle, the court concluded that an actual Lewis v. F.3d 997-1000 Cir.2004) conflict existed. The district court (holding reasoned that counsel’s failure to impeach impeach counsel's failure to the victim- former client-witness with con- very (through probation means similar to those viction and status amounted to ac- governed available in by adversely Houston's case and affecting representa- tual conflict rules) tion). evidentiary same the Nevada evidenced Houston and Chadwick and evidentiary hearing is need feud between An AED- prior representation at issue here was these factual issues. the ed to resolve evidentiary when hearing of that “bad PA allows for the direct result blood.” We (1) facts, which, if alleges prov petitioner allowing explo- are confident that relief; en, him to would entitle Jorgenson subjec- of the fact that ration receive a full and that he did not shows felt tively expressed conflicted and this court. in the state See hearing fair judge will not create a broad rule of 2254(e)(2); Alberni, U.S.C. imputed disqualification.4 facts alleged suggesting has 873. Houston portion reverse the We therefore a conflict of interest the existence of pertaining to the district court’s decision Jorgenson’s ad prejudicial effect of the conflict of interest and remand with which, if performance, proven, would verse evidentiary to conduct an instructions under him to relief Strickland. entitle hearing to whether a conflict determine fully investigate failed to court adversely affected of interest counsel’s no state Jorgenson’s perceived conflict and and, so, if whether there is performance hearing on a full and fair court held that the probability a reasonable result As a re allegation. this serious in the the trial would have been different sult, Court’s conclu Strickland, absence of that effect. See conflict existed is based sion no actual Alberni, 2052; 466 U.S. at record, devoid of sworn incomplete on an 458 F.3d at 874. We affirm remain testimony Jorgenson’s tactical explaining judgment. der of district court’s reasons, attempting vig any, not PART, AFFIRMED IN VACATED orously Chadwick with his impeach REMANDED AN AND FOR EVIDEN- exam. Similar polygraph or failed status party TIARY HEARING. Each shall prematurely court deter ly, district bear their own costs. Jorgenson’s performance mined that conflict, with adversely affected JR., SMITH, Judge, Circuit MILAN D. matter. from on the hearing out concurring dissenting part: in part, in- potential cognizant are holding I concur Part II’s with impu- litigation arising from the crease of the motion to contin- trial court’s denial conflict to an en- attorney’s tation one contrary or an However, ue was not unreasonable tire defender’s office. therefore, Slappy, U.S. and, application of Morris v. are unique facts of case 1610, 75 L.Ed.2d 610 imputed 103 S.Ct. unlikely floodgates of open However, no reason to order true see particularly conflict claims. This is alleged regarding longstanding because this case concerns might correctly points he know about While out that close what more the dissent case,” respondent formally requested ad- party an evidentia- and even counsel for neither ry "possible for such that he had some hearing, Houston raised need mitted that it is Moreover, during arguments. knowledge” case. hearing a oral about Chadwick's previously why for eviden- Jor- During arguments, we have remanded when asked oral Chadwick, tiary sponte hearing “to assist the court genson expressed sympathy sua making But- replied an accurate determination.” See "I a respondent don't have counsel for 624, (9th Cir.2008). Curry, ler v. 528 F.3d 651 agreed it was on that” and clear record speculative responses, com- "odd.” These legitimate fact- a need for further see ques- inadequate and confused finding bined with the case before an accurate deter- in this court, tioning us that by the state convince Houston of the issues can be made. mination required. development record “fully dis- of the is suggested failed 1084 claim, garding

violation of Houston’s Sixth Amendment his Sullivan and those right to conflict-free counsel. Houston has facts establish the of a absence Sixth requested hearing. never Neither has Amendment violation. inquired The trial State. court into A. matter, already apparent and it is claim lacks merit. I Houston’s therefore An hearing regarding the Part III majority opin- dissent from adequacy inquiry the trial court’s under

ion. clearly Holloway required. is not record already complete contains a tran- I. script of hearing the December 2000 dur- Supreme Court established ing which trial court inquired into Jor- that, a showing prejudice absent under genson’s alleged interest. 668, v. Washington, Strickland 466 U.S. does contend that additional (1984), 674 S.Ct. L.Ed.2d fact-finding regarding the circumstances granted habeas relief can be due to the necessary. substance of that is violation of Sixth defendant’s Amend Moreover, apparent it is from the exist- right ment conflict-free counsel either ing record that Houston is not entitled to First, of two circumstances: relief is habeas relief under granted Holloway. “Holloway if timely objected defense counsel ... to concurrent creates an automatic of two or reversal rule more conflicting defendants with interests where counsel to repre- is forced court “adequate the trial failed to take sent timely objec- over his codefendants steps” to ascertain whether the risk of Mickens, tion.” U.S. at S.Ct. require conflict was sufficient separate added). 1237 (emphasis Jorgen- Because Arkansas, Holloway counsel. v. 435 U.S. son was representing only one defendant— 475, 484, 98 S.Ct. 55 L.Ed.2d 426 Houston was not a with codefendant Chad- (1978). Second, in any case of other multi wick, it Holloway follows that does not ple representation, concurrent relief apply. granted only if the defendant demon if Holloway applied, Even I would hold strates that “actual conflict of interest that the trial court took “adequate steps” adversely lawyer’s affected perform presented ascertain the risks by the Sullivan, Cuyler ance.” 446 U.S. alleged conflict of interest. The court held (1980); L.Ed.2d 333 a hearing on the matter in December 2000. see Taylor, also Mickens v. 535 U.S. During hearing, gave the court Jor- 174-76, 122 S.Ct. 152 L.Ed.2d 291 genson an opportunity to explain length (2002). Houston is to an entitled eviden- inquired nature of conflict and (1) tiary hearing if alleged he facts anticipated about its impact ability on his proven, would demonstrate violation of to cross-examine Chadwick. The court rights Sullivan, under Holloway or inquired Jorgen- about the extent of did not he receive full and fair relationship Chadwick, son’s with Jorgen- opportunity develop facts. Earp those son’s knowledge of the in which case Ornoski, Cir. represented defender’s office had 2005). below, For the reasons described Chadwick, Jorgenson pos- and whether would that hold Houston failed to allege any sessed confidential information from facts that would entitle him to habeas re the prior representation. lief Holloway. transcript under The would also hold already that spans twenty Houston received a full this discussion pages. and opportunity fair to develop the inquiry beyond facts re- The thus went well inherently conflict with constitutionally inadequate tive defense was found inquiry 7,n. attorney’s U.S. at 484 Holloway. See 435 not due to the or undertaken trial court that the (explaining loyalties other or interests.” Foote Del any counsel opportunity “cut off Papa, 492 F.3d 1029-30 Cir. conclusory repre- make more than do 2007). Houston cannot meet this stan sentations”)- majority’s The that assertion dard. inquired] into the the trial court “[n]ever The trial court’s December 2000 have representation may impact evidentiary hearing, was not an per- or Jorgenson’s on Houston on had present, counsel were but it neverthe- was formance,” not Maj. Op. simply at is parties’ repre- sufficient less because the the record. consistent with personal sentations revealed that mixed the state majority The concludes that loyalties possibly could not have affected be- inquiry inadequate was trial court’s Jorgenson’s performance. repre- Those whether exclusively it on cause focused following: sentations included the The of Houston Jorgenson’s Jorgen- defender’s office for which public interests, be to Chadwick’s adverse longer represented worked no Chad- son Maj. Op. at rather than to Houston’s. personally repre- never wick. is premise of that conclusion 1081-82. him, Chadwick, did not sented know trial court understood incorrect. The nothing knew about his case other as a issue to be whether Chadwick’s role than that had failed a polygraph Chadwick government Jorgen- would render day before the test. Until the December in a man- [Houston] son unable “to defend hearing, Jorgenson did even know his defense ner that would be otherwise represented that office had Chadwick. attorney operating de- or another Jorgenson also that he had no confirmed understanding, In line with this ferred.” might “inside or what be con- information public court asked whether the defend- personal sidered or secret information prior representation er’s office’s Chad- ability compromise Jorgenson’s imparted by wick would Mr. to his has been veracity gov- as a challenge counsel,” Chadwick’s possess “any and that he did not thus shows ernment witness. record concerning Mr. Chadwick that information correctly the trial court understood be available to other de- would not Although the issue. State attorney.” dispute does not fense misunderstood, Maj. Court seems to have accuracy any of these statements. Op. at it does not follow that the together, Jorgenson’s Considering them inquiry inadequate. court’s that he could not effec- isolated assertion tively represent Houston because B. was, with ... Chadwick” “heart be [would] an hear- disagree I also mildly, We should not put it incredible. Hous- ing required is ascertain whether declining fault the state trial court ton was of effective assistance deprived evidentiary hearing no one conduct the Sullivan test. To estab- counsel under of divided requested, assertion i.e., conflict of lish an “actual interest” — loyalty possibly be credited. that cannot “adversely affected” his counsel’s one unneces- evidentiary hearing An Mickens, performance, 535 U.S. whether the interest of sary to determine have to 122 S.Ct. 1237—Houston would repre- previously defender who plausible de- that “some alternative show imputed can to Jor- sented Chadwick be have been strategy might fense tactic rep- in a manner that renders genson and that the alterna- pursued but was not against loy- reservation ineffective. relevant facts “mere theoretical of division already apparent, Mickens, 171, are and no court has alties.” 535 U.S. at actual the held an conflict exist for S.Ct. 1237. purposes purely Amendment Sixth Finally, Houston has to al- failed even on of we relationship. the basis such a As that, conflict, “plausi- lege due to the some recognized, have the Court or strategy ble alternative defense tactic never extended Sullivan to circumstances have might pursued been but was not.” either involving representation successive Foote, 492 at (emphasis F.3d 1029-30 add- conflicts, imputed much less to circum ed); Rice, see Campbell v. 408 F.3d involving stances See Earp, both. (9th Cir.2005) (en banc) 1170-71 (“Mickens ... F.3d at 1184 specifically (holding petitioner failed to show explicitly and concluded Sullivan was adverse effect the trial because tactics joint representation.”); limited Lambert neglected to pursue counsel would not (9th v. Blodgett, 393 F.3d Cir. succeeded). have The conflict of interest 2004) (“[T]he Supreme Court has never purportedly caused to refrain applied disqualification ethical imputed only impeaching from with evi- analysis.”). By rule in Sixth Amendment pled that he failed a polygraph, dence had emphasizing particularly high probabil guilty felony firearms in charges ity of prejudice multiple of cases concur spent parolee time aas thereafter.

rent representation, suggests Mickens of None these tactics would have succeed- anything, is disinclined to Court ed. extend Sullivan to circumstances such as by those encountered Houston. Mick See Polygraph are results admissible under ens, 174-76, 535 U.S. at 122 S.Ct. 1237. prosecuting law when the at- circuits, moreover, At two least held have defendant, torney, the counsel attorney’s that one a de representation of stipulate writing all for the defendant’s involving government fendant in a trial State, submission to v. the test. Jackson previously represented by witness another 116 Nev. 997 P.2d 121-22 attorney from the same office does not on Houston does contend not the re- its give own rise to an actual quired made, stipulations were and the Blount, See interest. United v. States 291 prosecutor specifically explained De- (2d Cir.2002); F.3d United States hearing cember 2000 poly- Chadwick’s (10th McCullah, v. 76 F.3d 1098-99 graph results would not be admissible. Cir.1996). Other similarly courts have Jorgenson therefore cannot be faulted for held that successive de declining to cross-examine Chadwick on with fendants adverse interests differ had, the matter. If prosecutor he attorneys ent at a defender’s office objected, would have and the trial court independently does not create an actual objection. have sustained the Trevino, conflict. See United States Houston also cannot claim adverse effect (5th Cir.1993); 65-66 Salam on basis of Jorgenson’s cross-examina- Lockhart, 527-28 Cir. regarding tion felony Chadwick’s 1989). majority Insofar as ordering is conviction. Evidence such a conviction enable Houston generally purpose admissible explore a Sixth Amendment claim based attacking credibility. interest, Nev.Rev. solely imputed conflict of 50.095(1). However, our Stat. decision is at with “the details precedent odds and the Court’s instruction that and circumstances of the crimes are the Sixth does protect Amendment ... not appropriate subjects inquiry.” unfamiliarity State, complete Jorgenson between P.2d 84 Nev. Plunkett v. Chadwick, (1968). asked Chadwick and with the absence Jorgenson in to a guilty pled allegation plausible he had an of a alterna- even whether gun into a house.” “firing a felony for no strategy, defense we have reason tive Any he had. responded that possibility of an actual conflict suspect the precluded have been inquiry of interest. made This rule was also by Plunkett. pretrial hear- Jorgenson at the apparent II. 2000.

ing December dis- majority’s will burden approach permit- have been Nor would evidentiary hearings even trict courts with Chadwick about his to cross-examine ted Amend- obviously on unmeritorious Sixth Revised Statutes parole status. the affirm denial ment claims. would 50.095(1) permits opposing party petition. with evidence of impeach a witness conviction, inquiry felony prohibits but it v. resulting sentence. Jacobs

into the

State, 155, 532 P.2d 91 Nev. fails to articulate Chad-

theory which the evidence of on would have been rele- status

wick’s vant. DEPARTMENT OF CALIFORNIA McDaniel, find I do not Alberni RESOURCES, WATER (9th Cir.2006), controlling. to be F.3d 860 Plaintiff-Appellee, We remanded for because, claim that case a Sullivan here, inquired court never unlike CORP., Corpo- a Canadian POWEREX impact of the possible into the adverse ration, Energy Corp., dba Powerex repre alleged conflict on defendant’s Defendant-Appellant. absence 871. The sentation. No. 06-15285. proble inquiry particularly of such an ample reason to matic because there Appeals, United Court of States attorney had limit believe Ninth Circuit. of his former own ed cross-examination 4, 2007. and Submitted Dec. attorney Argued conflict. The client due witness, cross-examining the objected to July Filed took the stand and when attorney him on multi impeach declined to notwithstanding ap issues

ple material admissibility of the impeachment

parent Id. at cross-exam

evidence. 868-69. up only pages of

ination itself took three contrast, By

transcript. Id. at 869. Chadwick, which cov

cross-examination closely thirty questioned pages,

ered over the crime and recollection of

Chadwick’s in his inconsistencies

pointed out internal fact with the

testimony. Coupling this

Case Details

Case Name: Houston v. Schomig

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 22, 2008

Citation: 533 F.3d 1076

Docket Number: 06-15523

Court Abbreviation: 9th Cir.