Jose Enrique Alberni v. E.K. McDaniel Frankie Sue Del Papa State of Nevada

beginning that it “more This is of it. The establishing is and end any evidence the error not than not that did probable obligation give district had no to court sen- materially affect [Salazar-Gonzalez’s] instruction, proposed Salazar-Gonzalez’s tence,” id. at we VACATE his sen- doing and committed no error in not so. un- resentencing and REMAND for tence correct, nothing As to there is there is now-advisory Guidelines. der the “clarify.” simply We should nothing AFFIRMED, sentence VA- Conviction affirm. and REMANDED. CATED RYMER, Judge, concurring Circuit judgment: and in the

part I, II, III.C,

I concur in and and in Parts part III.A and B. I judgment on Parts the need

company respect with to “clari Enrique ALBERNI, Jose Petitioner- be given instructions should fy” what for, Appellant, in” as district court “found cases held, correctly there was no evidence to support instruction Salazar-Gonza McDANIEL; E.K. Frankie Sue knowingly voluntarily not and lez was Nevada, Papa; del State of in the He found found United States. others, per eleven who also had no Respondents-Appellees. with here, in a hiding mission be bush 100 No. 05-15570. away yards having from the border ranged a from climbed fence four Appeals, United States Court of point, feet lowest offered eleven its and Ninth Circuit. no evidence that he didn’t know he was Argued and 2006. Submitted Feb. country.1 court A district “determina that a tion factual foundation does not Aug. 2006. support jury pro exist to instruction by the under posed defense” reviewed

the deferential abuse of discretion stan United

dard. States Castellanos-Gar (9th Cir.2001).

da, acted its well within discretion in no

ruling “[t]here was evidence what bring that [Salazar-Gon

soever would proposed

zalez’s play.” instruction] into zan-Becerra, (9th contrary”); 456 F.3d 954-55 Cir. dence to States v. United 2006). Quintana-Torres, (9th 235 F.3d otherwise, Cir.2000) (stating proof that absent circumstances, In these there was no basis juror may to be infer the defendant intended upon jury which reasonable could find that in the States if the United defendant found Salazar-Gonzalez did not enter the United country); v. Cas- within this United States cf. voluntarily. knowingly States See United tellanos-Garcia, (9th 270 F.3d 775-77 Rivera-Sillas, States v. Cir.2001) (holding government that the need Cir.2005) amended) (as (observing that prove prosecut- lack of official restraint in possibilities unknowing multiple there are §a 1326 offense unless the defendant involuntary entry, but invol- "because and/or with comes forward evidence that he was not untary presence exception is the rare and not rule, during free from official restraint the border allow an inference of voluntari- crossing).- ness has evi- where defendant raised no

Before L. ALARCÓN and M. ARTHUR McKEOWN, Judges, MARGARET Circuit HOLLAND,* and H. Senior RUSSEL Judge. District ALARCÓN, Judge. Circuit Enrique appeals Alberni Petitioner José denying petition his for a from order pursuant filed to 28 corpus writ habeas § Mr. Alberni was convicted U.S.C. Murder With Use of a Degree of Second Deadly Weapon in Nevada court. argues He that his Fourteenth Amend- rights ment due were violated process the introduction of character evidence at trial his his and that Sixth Amendment counsel was violated right conflict-free by his trial cross-examination of counsel’s had prosecution witness who been his attorney’s client. The Nevada right Court’s conclusion that Mr. Alberni’s process violated to due was not was not an contrary to not involve unrea- and did application sonable of federal law. We evidentiary vacate and remand for hearing to Mr. determine whether Alber- right ni’s conflict-free counsel was vio- lated.

I first whether Mr. We consider Alberni’s were violated rights due Turner, Paul Assistant Federal Pub- G. introduction of evidence at his NV, Defender, Vegas, peti- lic Las for the trial. tioner-appellant. Warwick, Attorney John Office of M. A Division, General, Justice Carson Criminal City, NV, respondents-appellees. for the Day, On Mr. Alberni Christmas McElroy. Dennis

shot killed his friend trial, At claimed that Mr. Alberni shooting jury The was accidental. persuaded deliberate and con- that was * Alaska, Holland, designation. sitting by H. Russel Senior Honorable Judge for United States District the District of degree Taylor, second mur- States. Williams vieted Mr. Alberni of 402-04, der. 146 L.Ed.2d 389 (2000). “A ‘contrary decision is to’ federal trial, prosecutor During the intro- law when a applies state court a rule of past duced evidence of Mr. Alberni’s vio- law different from that set forth” in Su- explosive temper lent actions and and re- preme or holdings when it makes a heavily closing lied on that evidence “ contrary based on determination ‘materi- direct argument. appeal In his ” ally indistinguishable Earp facts.’ v. Or- Court, Nevada Mr. Alberni ar- noski, (9th Cir.2005) admission gued of the propensity that the Williams, (quoting 405-06, 529 U.S. at argument evidence prosecutor’s and the 1495). S.Ct. An applica- “unreasonable process. due right violated his The tion” occurs applies when the state court concluded, Supreme without Nevada Court Supreme holdings Court to the of facts the rationale, explanation an its that of no petitioner’s case in a manner that is “ob- had occurred. constitutional error The jectively Id. (quoting unreasonable.” Nevada determined that a Supreme Court Williams, 409, 1495). 529 U.S. at 120 S.Ct. photograph gun Alberni with a Mr. “Clearly established federal law ‘as deter- familiarity relevant to Alberni’s show Mr. Court, by mined the Supreme refers to the guns, with to rebut his claim order that holdings, opposed as to the dicta of [the shooting the As to was accidental. the Supreme decisions as of Court’s] the acts, time other evidence of it held that the bad ” of the relevant state-court decision.’ Id. admission of such evidence was harmless (quoting Blodgett, Lambert v. 393 F.3d in “light overwhelming of the evidence of (9th Cir.2004)) 943, (internal citation guilt.” Supreme Alberni’s The Nevada omitted). concluded, analysis, Court also without prosecutor that the not engage did mis- Woodford, In Garceau v. 275 F.3d 769 conduct in to the alluding prior acts evi- (9th Cir.2001), grounds, rev’d on other ' jury. dence in his argument 1398, 123 S.Ct. 155 L.Ed.2d 363 (2003), acknowledged that the “Su- B preme expressly Court has never held that Mr. argues Aberni the introduc- process violates due to admit other evidence, propensity tion of the and the purpose crimes showing evidence for the prosecutor’s evidence, on that comments in conformity conduct therewith.” Id. at rights violated his due under process the fact, 774. In Court Supreme reserved Fourteenth A Amendment. district determination of this in Estelle v. or grant deny petition court’s decision to McGuire, S.Ct. corpus habeas 'is reviewed de novo. (1991). Estelle, L.Ed.2d 385 the defen- Woodford, Daniels v. 428 F.3d killing dant was his infant accused of (9th Cir.2005). daughter. 64, 112 Id. at 475. The S.Ct. prosecution introduced evidence that on Under the and Anti-terrorism Effective occasions, prior child suffered non- (“AEDPA”), Penalty Death Act a state Id., injuries. accidental at 112 S.Ct. prisoner § is entitled to relief under 475. The intended to evidence was estab- regarding adjudicated a claim on the mer- lish that the from its in child suffered “battered state court if decision of the syndrome” child highest ultimately state’s her contrary court either is injuries fatal or were not accidental. Id. at application involves unreasonable law, federal as S.Ct. 475. After the defendant was deter- Supreme mined Court of the convicted and his to the state court appeals United decision is Supreme re- sion of a Court denied, corpus sought he habeas were argued 475. He law as deter- ‘clearly established federal Id. at lief. ” prior of the evidence Id. admission mined Court.’ process. right to due injuries Ducharme, violated Duhaime v. 1182(quoting 66-67, 475. The Id. at (9th Cir.2000)). “Circuit 602-03 of the evi- that the admission held Court it' only to the extent precedent is relevant of a due to the level did not rise dence clearly estab- clarifies what constitutes injury- prior “the violation because process “[P]osi>-AEDPA[,] only Id. lished law.” in the an issue was relevant to evidence holdings binding are Supreme Court 70,112 475. Id. at case.” n. Earp, courts.” explore further “we need not stated that apparent assumption Court.of though the argues Mr. Alberni that even of the due that it is violation Appeals held explicitly has never by the Fourteenth guaranteed evi- the introduction of not rele- for evidence Amendment may process, we dence violate due Id. in a criminal received trial.” vant be “general governing principles apply the Furthermore, there was no the Court held Ignacio, v. at hand.” Robinson the case jury that the consid- likelihood reasonable (9th Cir.2004). 1044, 1056-57 injuries pro- as 360 prior the evidence of ered F-3d 74-75, 112 gen- Id. at S.Ct. a pensity evidence. Court has established “[bjecause we need not 475. It concluded: principle that evidence “is so eral issue, on express opinion no reach the we violates extremely unfair that its admission the Due law would violate whether justice” may conceptions fundamental if it the use of permitted Process Clause Dowling v. process. violate due United propensity to show ‘prior crimes’ evidence 352, 668, States, 342, 110 S.Ct. 493 U.S. at 75 n. charged crime.” Id. to commit a (1990). ar- 708 Mr. Alberni 107 L.Ed.2d 5,112 475. gues prece- that we can look to our own general to the extent it clarifies this dent au Lacking any Supreme Court Robinson, at 1057. principle. 360 F.3d thority directly point, Mr. Alberni relies to exclusively prior on cases we decided Robinson, granted the trial court support to his the enactment of AEDPA at request represent himself defendant’s evidence of contention that the canvassing on the is- trial after extensive process. case violated due fered his After he was sue. 360 F.3d at 1048. See, Garceau, 775; at e.g., 275 F.3d Wal convicted, sought ap- to have counsel he (9th Maass, 1355, 45 F.3d 1357 ters v. Id. sentencing hearing. pointed his Rees, Cir.1995); McKinney v. 993 F.2d request, conclud- The trial court denied (9th Cir.1993); 1378, v. Van 1384 Jammal canvass ing that on the extensive “[biased (9th Cir.1991); 918, Kamp, 926 F.2d de contrary my sugges- of the Court and (9th Estelle, 902 F.2d 749 Cir. McGuire defendant], rep- he elected to [the tions 62, 475, 1990), rev’d 502 U.S. Id. proceeding.” himself in this resent (1991). However, when the L.Ed.2d 385 argued in federal habeas The defendant expressly has reserved Supreme Court this denial corpus proceedings here, issue, it has of an as consideration violated the Sixth Amendment. counsel au rely cannot on circuit petitioner that “[al- Id. at 1051. We concluded or thority right that the he to demonstrate has never ex- though estab she seeks to vindicate criminal defendant’s plicitly addressed a at Earp, 431 F.3d 1184-85. lished. See counsel for ability right to re-assert his from an exten- “precedent Circuit derived , attack”); of that previous Scully after a waiver constitutional Collins v. sentencing (2d (“In trial, Cir.1985) partic- its silence on this right during 755 F.2d order to prevent not us from identi- ular issue need prevail on a claim that an evidentiary error general governing fying applying deprived the defendant of due un 1056-57; at Id. at see principles hand.” der the Fourteenth Amendment he must Williams, 120 S.Ct. also 529 U.S. pervasive show the error was so as to (“[A] also in- state-court decision fundamentally have denied him a fair tri application an unreasonable volves al.”) (citing Agurs, United States v. precedent the state court either Court’s 97, 108, 96 S.Ct. 49 L.Ed.2d 342 unreasonably legal principle extends a (1976)); Banmiller, United States precedent to a new context where from our (3d Cir.1962) (concluding apply unreasonably or re- should that defendant’s trial was rendered funda principle to extend that to a new fuses mentally unfair prior introduction of apply.”). it should We stat- context where record), Texas, abrogated by Spencer v. “Supreme that the Court’s ed Robinson 17 L.Ed.2d 606 long has jurisprudence Sixth Amendment (1967); Virginia, Stockton v. 852 F.2d that a criminal recognized defendant’s (4th Cir.1988) (“[T]he admissibility right compo- to counsel is fundamental generally evidence is a matter of state law justice system.” nent of our Id. which does not concern a federal properly Furthermore, noted, “whenever de- habeas court unless it impugns the funda during denied sentenc- fendant is counsel trial”); mental fairness of the Lucas v. uniformly has ing, Johnson, Cir. any constitutional found error without 1998) (“Habeas relief is warranted er [for showing prejudice.” (citing of Id. United roneous admission of when the evidence] Cronic, 648, 659, 104 States v. 466 U.S. crucial, played erroneous admission criti (1984); 2039, Chap- 80 L.Ed.2d 657 trial”) highly significant cal and role in the 8, California, n. man v. 386 U.S. 23 & (internal omitted); citations and alterations (1967)). 824, 17 L.Ed.2d 705 Af- (6th Renico, Burton v. 391 F.3d general at the articu- looking principles ter Cir.2004) (“For the admission of evidence Court, by Supreme lated the we concluded: process, to violate constitutional due it “[Wjhen faced with a novel situation we admitting must be shown that the evidence turn our well as may precedent, own as ”) (inter fundamental ... violates fairness courts, the decisions of other federal omitted); quotations nal Pierson v. order to determine whether the state deci- (7th Cir.1992) O’Leary, 959 F.2d 1385 general principles sion violates the enunci- of (stating improper the admission by and is thus Supreme ated Court fundamentally evidence a trial un contrary federal renders outweighs if its prejudicial Id. at 1057. fair its effect law.” probative value “such that its admission circuit, in every are mindful that We trial”), likely changed the outcome of the prior cases decided to the enactment of grounds, on other v. abrogated Cabrera AEDPA, im- acknowledged, has least (7th Cir.2003); Hinsley, 324 F.3d plicitly, improper that the introduction of (8th Lockhart, 791 F.2d Hobbs v. may process due if it ren- evidence violate Cir.1986) regarding (stating questions fundamentally trial unfair. ders a See Jer- admissibility of are renewa evidence (1st Cir.1980) Hall, 19, 22 v. 622 F.2d vis corpus proceeding in a if “the (“[S]o ble habeas purpose long legitimate as ... as to prejudicial error was so asserted prior-crime served the admission of was evidence, F.2d subject deny process”); McKinney, 993 its admission was not due propensity introduction of evidence. that use of character (concluding

at 1380 propensity violate evidence to show Supreme Court concluded Had the Nevada Reynolds, process); Duvall due propensity evi- the introduction Cir.1998) (stating that F.3d process, never violate due this dence could of evidence that the erroneous admission holding step would have been out of with vio fundamentally trial unfair renders a application Supreme each Circuit’s Kemp, Dobbs v. process); lates due precedent. Court (11th Cir.1986) (stating evidentiary grounds are errors Nevertheless, this case is distin corpus of habeas when granting writ case, In guishable from Robinson. unfair). fundamentally trial rendered Supreme expressly Court reserved Ap unanimity of the Courts of Given the at hand in Es consideration of the issue whether the regarding question peals Robinson, Supreme telle. Court evidence could propensity introduction of such a had made reservation. process, and the corre ever violate due Robinson, 1056-57, n. 6. 360 F.3d at Supreme sponding unlikelihood the Court of this case are more The circumstances will ever resolve the reserved Estelle,1 that this argument Mr. Alberni’s in which we present Earp, like those general principles of apply Court should princi declined to declare a constitutional process due articulated ple clearly established after the The Su Court is somewhat attractive. expressly had the issue concluded general has articulated the preme Court question.” Earp, “open that a denial of due principle in Earp at 1185. held that “the advent We complained demonstrated “the action AEDPA of revers option forecloses concep ... violates those ‘fundamental ing a state court determination because it justice lie at of our tions of which the base conflicts with circuit law.” Id. We cannot ” institutions.’ political civil United conclude the Nevada Lovasco, 431 U.S. States objectively man acted in an unreasonable (1977) (quoting 52 L.Ed.2d 752 concluding ner in that the evi Holohan, 103, 112, Mooney v. against dence introduced Mr. Alberni did (1935)). 340, apply 79 L.Ed. 791 process, given not violate due that Estelle ing general principle, prece both our expressly “open ques left this issue an precedents of our sister dents and apply circuits have concluded that it could tion.” 34014059); process,

1. The has denied certiorari at due 2000 WL Olivarez presented 622, the issue in this McKinney, least four times on 510 U.S. 114 S.Ct. 126 See, e.g., Haw case and reserved in Estelle. (1993) (petition writ of certio L.Ed.2d for California, kins v. 537 U.S. Appeals, of rari to the Ninth Circuit Court (2003) (petition 154 L.Ed.2d 1021 for (9th Cir.1993), ques F.2d 1378 in which the writ of certiorari to the California Court of propen tion was whether introduction Appeal, Cal.Rptr.2d Cal.App.4th closely sity evidence in a balanced case con (2003), petitioner argued in which violation, per due stituted se prior evidence of misconduct violated due Illinois, 13076599); WL Jacobson v. 32133733); process, WL duPont (1993) 113 S.Ct. 125 L.Ed.2d 725 Pennsylvania, U.S. (petition Appellate to the for writ of certiorari (2000) (petition L.Ed.2d 276 for writ of certio Illinois, petitioner argued Court of in which Superior Pennsylvania, rari Court of ques Court should address the (1999), petitioner ar 730 A.2d 970 which Estelle, open tion it left 1993 WL gued that the use of evidence when 13076599). insanity defendant asserted defense violated right Mr. Alberni asserts has not altercation with Mr. Flamm. He The testified been evening, staying one while he was in a Court, by AEDPA. The dis required room, as hotel he Mr. gave quarter Flamm a in denying trict court did not err Mr. and a drugs ounce knife. Mr. Flamm process grounds.2 due petition Alberni’s left the room subsequently hotel and was by police. searched police found the II drugs. Mr. Alberni testified that Mr. Next we consider whether Mr. Alberni’s Flamm police gotten told the he had to conflict-free counsel was violated. right drugs from Mr. Alberni. Mr. Flamm re- turned to the hotel room a short time

A later, in, insisted he be let and asked Flamm was a former client of Sean money for gas. girl- Mr. Alberni’s Buchanan, James Mr. Alberni’s trial coun- him a gave friend few dollars. objected Mr. Buchanan to cross-ex- sel. left, Immediately after Flamm Mr. amining a former client. police arrived Mr. Alberni’s door. Mr. up during Mr. Flamm’s name first came police Alberni consented for the to search of Mr. the State’s cross-examination Alber- room, the hotel and police drugs. found ni. The asked: State Mr. Alberni was arrested. He testified Q you person Do know a the name him police told that Mr. Flamm Flamm? Sean had him agreed turned in. Mr. Alberni Yes,A sir. police assist the with a buy. controlled He Q you ever involved in an acci- Were actually help testified that he did not dent with Mr. Flamm? police promised. as he Yes, fact, they A sir. a matter of As began Mr. Alberni to tell his and Mr. McElroy came to and shoot me Dennis acquaintances Flamm’s mutual that Mr. my day. saved life that Flamm was a “rat” and that Flamm Mr. Q you Did ever strike Mr. Flamm? Flamm, had “snitched” on him. Mr. hear- Yes, sir, A I did. making that Mr. Alberni was these Q you did strike him with? What statements, fight threatened to with Mr. MyA hand. responded, “Bring Alberni. Mr. Alberni Q in that gun There wasn’t involved Eventually on.” Mr. Flamm and Mr. Al- incident? spoke phone exchanged berni on the They A had it and we took it from him. Mr. hostile words. Alberni testified: him Dennis took it from when the dude me, shit, telling piece ‘You “He was cocked it to shoot me. Dennis rushed know, you you. you say- fuck are What him, gun, took took it. and I’m got paperwork a rat. You some Q money? Was that an incident over talk, you got on me?’ That’s street A No. something prove, something paper. on Q you Are sure? any paperwork. I don’t have I’m not Yes,A sir. going cops. to the You ratted on some- why redirect, body. you That’s are violent. He Mr. Alberni testified in detail On got out concerning up got parole the events that led a violator. He prosecutor’s 2. Mr. also claims his due comments on the evidence did Alberni rights theory were violated on the that the Supreme Court not violate prosecution engaged by in misconduct com- precedent. menting on the evidence. The know, any offensive making Mr. Flamm denied lawyer and I don’t through some gestures to Mr. Alberni. He denied thing led to another.” one him in Mr. Alberni had ever threatened Alberni, Mr. goading from Mr. With connection with the debt. apartment where Mr. Flamm came to the previously represent- Buchanan had Mr. ac- staying. Mr. Flamm was Alberni was charges Flamm for which drug ed Mr. on Lum by David Lum. Mr. had companied pled guilty placed Flamm and was on Mr. Alberni, Mr. According to Mr. gun. Flamm a represented He Mr. probation. through the door when Mr. Flamm rushed with his arrest second time connection it. Mr. Flamm made McElroy opened him gave at the motel after Mr. Alberni gestures and remarks. Mr. threatening Mr. Alberni drugs arrest about which —the McElroy hit Mr. Flamm. Mr. Alberni As a result of the arrest testified. gun from Mr. Lum. Mr. grabbed motel, probation was modi- Mr. Flamm’s McElroy hit kicked Mr. Lum. Mr. camp. boot Mr. fied to include When testi- hit him as well. Mr. Alberni Alberni complete camp, Flamm failed to boot McElroy saved his life. fied Mr. imprisonment deferred sentence of was prosecu- recross examination On testi- imposed. By the time Mr. Flamm tor, following exchange occurred: fied, parole. he was on Q backup your here to Dennis isn’t Mr. Buchanan refused cross-examine story, is he? Flamm, any “I him stating, Mr. won’t ask No,A he ain’t. explained: questions. questions.” No He Q happened to Dennis? What just “I don’t wish to cross examine one of A He’s dead. my I questions.” clients. will ask no Q him? Who shot began The trial court Mr. Accidentally, A me. representa- Flamm Mr. about Buchanan’s Q Who shot him? him. tion of The court established although Mr. Buchanan’s A Me. Mr. Flamm was not connected with rested, After the defense the State called shooting McElroy, of Mr. it was connected Mr. Mr. Flamm as rebuttal witness. with the altercation between Mr. Flamm Flamm that he went to see Mr. testified and Mr. Alberni. The court did not ask ap- owed Mr.

Alberni because he Alberni regarding Mr. Flamm for details how the Mr. Flamm had owed proximately $300. matters were two related. money for time and Mr. Alberni the some sought trial court then waiver pay. was not able to He did remem- Flamm, the conflict from Mr. not Mr. but anyone ber besides Mr. Alberni was Flamm: Alberni. The court asked Mr. Flamm apartment. explained: Mr. you any “So waive conflict of interest apartment] I walked to confront [the you might represent- have virtue of him telling girl him because he was some Mr. case and ing both Alberni on this up to talk to me. I went he wanted yourself you in the matter for which stand go talk to him and to see what there To Mr. Flamm re- probation?” going on. He was turned around sponded: “None.” him, go approach and when I went to he gun of his Although turned around with butt the court insisted that Mr. upside my eye right hit me right right and Flamm had “waived his have [Mr. confidence,” At that time I fell down and I maintain here. his Buchanan] happened explicitly don’t remember what then. court never asked Mr. Flamm attorney-client a confidential- that. He did not question for waiver Mr. Flamm ity explained or to him the nature of the regarding who started the altercation. He Instead, right supposedly waiving. he was did not press Mr. Flamm when he con- you any the court asked him: “Do have tended he did not McElroy remember Mr. objection to Mr. Buchanan cross examin- being present. He did not Mr. ask Flamm you point?” about this incident about Mr. Alberni’s claim that he hit him “you don’t care whether [defense hand, gun. with his not with a Regarding question; asks the is that cor- counsel] Mr. Flamm’s claim that he went to see Mr. rect?” After Mr. Buchanan insisted that a Alberni because money, he owed him conflict of interest had arisen because Mr. following exchange occurred: Alberni had referred to Mr. Buchanan in Q You went express there with the testimony spoke lawyer his when he of a intent of confronting Mr. Alberni re- getting jail, Mr. Flamm out of the court gard things saying he was you? about stated, privilege. “He holds the He waives No,A I money. because owed him it; is that correct?” To which Mr. Flamm Q Okay. Well— volunteered, needs “Whatever. Whatever A went money. We there to talk about to be asked. I mean let it be asked.” Well, Q if you somebody owe money, Mr. Buchanan “I protested: don’t know you go somebody up, you? don’t look do can whether client waive an ethical him, yeah. A breach of a confidential When comes to relationship.” The trial court responded there was “no Nothing Mr. Buchanan: further. ethics involved once he waived the conflict only The cross-examination up took three right you and his to have retain his confi- pages transcript. stated, dence.” The court “as a matter of Mr. Alberni contended on direct appeal law, my opinion, hereby and I absolve in state court that the cross-examination you any possible conflict of interest and right violated his Sixth Amendment to con- Court, the issue that is before the flict-free counsel. The Nevada Court, law, you as a matter of rules that existed, Court concluded that no conflict examining have no ethical issue with cross exist, and to the extent one did the trial because he has witness waived his questioning court’s alleviated it. The dis- right you to have maintain his confidence.” § pro- trict court concluded in the responded, right. Mr. Buchanan “All I’ll jury already that “the ceedings had been accept that.” that Flamm involved in informed had been proceeded Mr. Buchanan to cross-exam- Alberni; thus, selling drugs with the de- Mr. Flamm. impeach ine He did not Mr. gain by asking fense stood to little Flamm felony Flamm with prior his conviction. felony drug about his conviction.” Accord- impeach He did not Mr. Flamm based on ingly, the district court held that Mr. Bu- probation the fact that he violated his performance adversely chanan’s was not accepted drugs when he from Mr. Alberni. by the conflict. affected impeach He did not Mr. Flamm with the testimony. inconsistencies He did B Flamm impeach pointing Mr. out right to “The Sixth Amendment the inconsistencies between his and Mr. right rep counsel includes correlative testimony. Although Alberni’s he did ask free from conflicts of interest.” him resentation whether he had heard Mr. Alberni had rat, Mayle, him Lewis v. press called he did not Mr. Cir.2004). angered by

Flamm on whether he was To establish a violation 870 counsel, 171, loyalties.” retical of Id. at

right petitioner conflict-free the division (1) in an spite must of 1237; 5,122 show either at 172 n. 122 S.Ct. see also id. him objection, court failed to allow the trial 1237 S.Ct. potential to show that

the “opportunity (“[W]e have used ‘conflict interest’ to imperil right impermissibly conflicts loyalties a mean division of affected (2) an trial;” a fair actual conflict of or performance.”). counsel’s Sullivan, 446 Cuyler interest existed. 1708, 335, 348, U.S. 100 S.Ct. 64 L.Ed.2d objects to potentially When counsel (1980). 333 conflicted the trial representation, In in which several the cases opportunity has an to eliminate the possi right defined conflict-free has bility impact perform an on counsel’s counsel, attorney actively defense seeking ance a waiver from through concurrently conflicting inter- represented defendant, counsel, separate appointing or 162, Taylor, ests. 535 Mickens v. U.S. taking ascertain adequate “steps to wheth 166-167, 152 122 L.Ed.2d 291 S.Ct. er risk too remote warrant [is] (2002) authority); (discussing earlier see separate Holloway, counsel.” 435 at U.S. Arkansas, Holloway also 435 U.S. Mickens, 1173; 535 S.Ct. at U.S. (1978) (attor- 1173, L.Ed.2d 426 S.Ct. 173, 122 If the trial S.Ct. 1237. court fails ney co-defendants); Cuyler, representing (same). inquiry potential to make such an into the 337-38, at 100 S.Ct. 1708 U.S. conflict, created, effect, cases, Holloway, In reversal is automatic. those the Court a an actual distinction between conflict at 435 U.S. 98 S.Ct. 1173. The Court interest, hypothetical It and a mere one. case, prejudice has that in a reasoned such pointed representation by out that dual presumed. should be It has stated: attorney per does not se create a conflict of Court has concluded that [T]his the as- Indeed, situations, many interest. dual among sistance is those of counsel ‘con- representation may in the defen- work rights stitutional so basic to a fair trial Holloway, dant’s favor. at that their infraction can never be treat- 1173; Cuyler, 446 U.S. at ed as error.’ Accordingly, harmless Nevertheless, S.Ct. 1708. Court con- a deprived when defendant “joint representation cluded that of con- presence attorney, and assistance of his suspect” flicting interests is because of the throughout prosecution either or perform- effect it have counsel’s in, least, during stage critical at 489-490, ance. at Holloway, 435 U.S. offense, prosecution capital aof reversal Accordingly, S.Ct. 1173. the Sixth is automatic. protect against Amendment does not loyalties.” “mere theoretical division of That an attorney representing multiple Mickens, S.Ct. 1237. conflicting defendants with interests is Rather, against protects conflicts of in- physically present pre-trial proceed- adversely per- terest affect counsel’s trial, ings, during sentencing and at does 172 n. formance. Id. at departure general not warrant from this Mickens, Indeed, in the Court held rule. Joint of conflicting “actual is defined conflict” the effect suspect interests because of what it potential pérform- conflict had on counsel’s attorney to prevent tends from do- Mickens, ance. explained, the Court ing. “[A]n actual conflict interest [means] (internal 489-90, Id. at cita- precisely a conflict that counsel’s affected omitted). performance to a opposed mere theo- tions —as sepa- that the trial court’s was too remote to warrant argues conflict] The State the of Mr. Flamm eliminated questioning rate counsel.” Holloway, 435 U.S. Flamm for conflict because Mr. potential 98 S.Ct. 1173. The Court did not assume attorney-client privilege. The his waived performance that once counsel his claimed that after a argument supposes State’s affected, adversely would be the trial court loyalties elimi hypothetical division attorney’s could somehow erase the con- nated, no actual conflict of interest will cerns'through seeking of the at- waivers for support There is some this arise. torney’s ethical duties. The trial court Partin, In States v. proposition. United expressly this case did not find that the (9th Cir.1979), held that 601 F.2d 1000 per- risk was remote that Mr. Buchanan’s waived no conflict arose when the witness formance It hardly would be affected. case, In attorney-client privilege. his inquired into the nature of Mr. Buchanan’s objected cross-examining counsel to his In questions posed concerns. the to Mr. attorney-client privi client because Flamm, the trial court focused on whether stated, “Once wit lege. [the This Court willing impact the witness was waive attorney-client privilege waived ness] of the conflict of It not ques- interest. did which concerned was [counsel] the conflict tion Alberni alleged Mr. about the conflict privilege was not [coun eliminated. possible and its impact adverse on Mr. 1009; Id. at see witness’s].” but sel’s] [the Buchanan’s defending Mr. Alberni. Jeffers, also United States (7th Cir.1975) 1256, 1265 (concluding that a Partin, concluding In after attorney-client privilege may waiver of attorney-client waiver of privilege had have alleviated counsel’s concern that he potential eliminated the for adverse possessed confidential information con effect on performance, counsel’s the court witness). cerning a per- went on to consider whether counsel’s adversely formance was in fact affected.

However, authority this does not Partin, implication 601 F.2d at 1009. The guide inquiry our under these circum trial Rather, court’s theoretical elimina- stances. we are bound consider precedent, which holds tion of the conflict would not be sufficient by that an actual conflict is defined its impact in the face of an actual adverse counsel, effect on not whether there is a case, In even if the defendant. loyalties.” “mere theoretical division trial sought waiver court Mr. Mickens, 535 U.S. at 172 n. attorney-client privilege was val- Flamm’s required 1237. A court is not id, performance if Mr. was ad- Buchanan’s inquire something “into actual conflict as affected, versely a conflict existed. The separate apart from adverse affect.” Nevada Court’s conclusion Here, Id. at 172 n. 122 S.Ct. 1237. “any potential conflict of interest was suffi- Flamm, questioning trial court’s of Mr. ciently mitigated by questions the district have, hypothetical perspective, from a posed to the witness” is therefore conflict. eliminated Mr. Buchanan’s It did law. contrary established federal necessarily impact eliminate the We are nevertheless unconvinced Mr. conflict Mr. perform had on Buchanan’s object- argument Alberni’s that because he Holloway, ance. In the Court concluded Flamm ed to the cross-examination of Mr. that a trial questioning court’s could elimi insuffi- inquiry and the trial court’s However, nate a conflict. the conflict cient, showing no further of an actual con- question could be eliminated because the Holloivay, flict is needed. it was unnec- appointment would result of new essary or to demonstrate counsel the conclusion “the risk the defendant [of sentation); attorney Jeffers, 520 F.2d at re- an actual conflict because (discussing on that record his n. 14 conflicts of interest peatedly contended adversely affected. representation was of a prior based on the 1173. 98 S.Ct. Holloway, 435 U.S. by defense counsel prosecution witness attorney’s judg- 2d, The Court deferred 5th, 1st, and citing and cases from the Id. at representation. his own ment about potential for recognizing 3d Circuits case, Bu- In this Mr. 98 S.Ct. conflicts). such “accept” the chanan stated that he would to de present record is insufficient from his asserted trial court’s “absolution” actual conflict of inter termine whether an that, Beyond there is conflict of interest. im Mr. Buchanan failed to est existed. that Mr. Bu- no to demonstrate record conviction, prior Flamm his peach Mr. with con- chanan continued to consider himself status, probation multiple his and on strained. points testimony. of his These omissions necessary It is therefore for Mr. light impact to be critical in of the appear that an actual to demonstrate Alberni they jury’s perception could have on is, That he conflict of interest existed. credibility and his Mr. Alberni’s perform must that Mr. Buchanan’s show Mr. Flamm was called as a violence. adversely affected. It is not ance was impeach Alberni. witness to Mr. rebuttal opinion from its clear Nevada only supporting When the evidence Mr. holding based its Court shooting claim that the was acci Alberni’s there was no actual conflict interest testimony, dental was his own it was criti fact that Buchanan no solely on the Mr. jury cal that the find him credible. How Flamm, Mr. and longer represented ever, question the failure to Mr. Flamm “actively representing therefore was not conviction, proba regarding prior his his See, conflicting e.g., Bragg interests.”' v. status, testimony tion and his inconsistent (9th Galaza, Cir.), 242 F.3d necessarily is not attributable to a conflict. (9th Cir.2001) amended 253 F.3d 1150 performance A link between deficient and (concluding that to show an actual conflict the conflict of interest must be shown. petitioner must show that counsel ac 998-999(consider- Lewis, F.3d at See interests). tively represented conflicting link omissions in between counsel’s holding Such would be unreasonable conflict); cross-examination and Lockhart clearly It light of established federal law. (9th Terhune, 250 F.3d Cir. by Supreme 2001) “that (requiring petitioner show precedent representation” that “successive attorney’s to have been behavior seems may pose an actual conflict of interest conflict”). by the The district influenced op may have an affect because adverse evidentiary not conduct an hear did Mickens, performance. counsel’s See ing. Thus, Mr. Buchanan has not been 175-176, (declining interrogated concerning his failure to im attorney decide whether when peach regarding Mr. Flamm his criminal representation, constrained successive Al testimony. record and inconsistent only attorney’s an adverse affect on the though testimony Mr. on this Buchanan’s performance must be shown or whether conclusive, matter would not be Sanders v. prejudice must be shown order ob Ratelle, (9th Cir.1994), relief, tain questioning but not that suc legitimate there be tactical reasons may pose cessive conflicts Sixth Amend to im Lewis, for Mr. Buchanan’s decision difficulties); ment see also peach Mr. Flamm on these matters. We (applying F.3d at 989 Amendment Sixth analysis repre- speculate of successive will not about his cross-examina- Galaza, postconviction peti Mr. Alberni’s strategy. Bragg tion Cir.2001) evidentiary to tion was denied without an (refusing attorney’s hearing. The Nevada District rea the. regarding whether speculate hearing necessary inactions” on soned that no be any the “cause of conflict was attorney stating cause the claim of conflict was a “naked part allegation.” appeal from had valid tactical On the decision attorney “may have Mickens, Court, reasons”); 122 of the Nevada District the Nevada (O’Connor, J., concurring) Supreme Court did not address the denial (“[0]ur evidentiary hearing. of an In his state speculate about coun- role is not post-conviction proceedings, of Mr. Alberni plausibility or about the sel’s motives However, requested appointment repre of counsel to litigation strategies.”). other request can- him. His was denied. Be testimony, Buchanan’s sent without Mr. sought counsel and it satisfactory resolution of the cause Mr. Alberni reach a not denied, neglected he has not his prior Mr. Buchanan’s question whether 1090(stat- adversely rights. Bragg, af- F.3d at Flamm representation Mr. may that not hold an a federal fected his defense of Mr. Alberni. if evidentiary hearing petitioner the ne evidentiary that an conclude We court). in glected rights state this issue. hearing necessary is to resolve evidentiary evidentiary hearing an Should the petitioner A is entitled to (1) facts, which, perform if demonstrate that Mr. Buchanan’s hearing alleges if he (2) affected, relief; adversely question him to and ance was proven, would entitle prejudice pre will be receive a full and fair remains whether show that he did not sumed, in a or whether Mr. Alberni must dem in court either at trial or hearing Calderon, onstrate, Washington, under Strickland v. proceeding. Karis v. collateral 1126-27(9th Cir.2002). Mr. 466 U.S. (1984), probable impact alleged that Mr. Buchanan L.Ed.2d Alberni has trial. The Nevada Su the trial court’s the result of his only grudgingly accepted case, interest, concluded' that in this preme conflict of “absolution” from his conflict, conflict of interest been he failed to had an actual and that due to the shown, presumed. The key points. prejudice would be Mr. Flamm on several impeach true, be shown question prejudice is whether must allegations If are Mr. Alberni these However, in is one is cases of successive entitled to relief. record specifically left allega if these not sufficient to determine Mickens, in open Mickens. See tions are true. 1237(‘Whether [Cuyler ] a full and Mr. Alberni did not receive of successive [cases should be extended in state court. hearing fair on this remains, ju as far as the representation] to the Nevada presented The conflict was concerned, an is risprudence of this Court appeal. on direct Accord- Supreme Court open question.”). lim- ingly, the Nevada Court was Mickens, that in . In the Court concluded trial record. It did ited to a review of the Mr, conflicts, only an ad- Buchanan’s cases of concurrent not have the benefit attorney’s reasons, performance tactical verse effect on testimony regarding the in relief. be shown order obtain limited cross-examination. must any, behind his words, after an actual conflict actual In other conclusion that there was no Its demonstrated, afforded re- relief must be incomplete on an conflict of interest rested However, the Court gardless prejudice. record. existed, in of successive con- of interest Mr. Alberni need cases implied flicts, stringent preju- Strickland the more affirm the district prejudice. show We applied. In addition may be dice standard ruling court’s the Nevada conflict, showing an actual Court’s conclusion that Mr. Alberni’s due attorney’s perform- adverse effect on process rights were not violated ance, required to petitioner be introduction of character evidence is not prejudice. The Court reasoned show objectively unreasonable. conflicts, po- there is less with successive PART; AFFIRMED IN VACATED defen- tential for a conflict to prejudice AND REMANDED IN PART. dant, necessarily and so the court need not presumption preju- engage the same McKEOWN, Judge, concurring Circuit

dice. Id. part dissenting part: Lewis, a after AED- case we decided enacted, an PA was we concluded that in I I opinion. I concur Part of the attorney’s representation pros- former of a write because it separately important in an con- ecution witness resulted actual Supreme underscore that the Court’s deci- impacted represen- flict of interest that pass question, expressly, sion to on a even Lewis, tation. 391 F.3d at 997-1000. We automatically is not the death knell for applied permissive the more standard that relief. I as to Part II habeas dissent only attorney’s an adverse effect on the attorney because the conflict issue here performance, prejudice, and not needed to involves successive and Al- be shown to establish a Sixth Amendment required prejudice berni to establish at 997. concluding violation. Id. After Washington, under Strickland v. 466 U.S. that an conflict actual of interest had been (1984). 104 S.Ct. 80 L.Ed.2d 674 shown, we remanded the case to the dis- majority burden, The relieves him of this trict court with that the habe- instructions in approach explained Mickens v. —as petition granted. as be did not re- We 162, 174-75, Taylor, quire petitioner prejudice. to show Id. (2002) 1237, 152 L.Ed.2d 291 not has —-that at 999-1000. Supreme Because the Court by Supreme prece- been established Court open question prejudice left whether dent. shown, needed to be with and consistent holding,

our we hold that the Nevada Su- preme that prejudice Court’s conclusion I. AEDPA RELIEF MAY BE AVAIL- presumed contrary could be was not ABLE FOR RESERVED ISSUES clearly established federal law as deter- I in concur Part I of the opinion, with Supreme mined Court. understanding Supreme specific question, Court’s reservation of a

CONCLUSION otherwise, not, itself, expressly or does We vacate the decision of the district preclude habeas review under the Antiter- regarding the conflict of interest Penalty rorism and Act Effective Death evidentiary claim with instructions that an (“AEDPA”), § 28 U.S.C. hearing question be conducted on the situations, may these federal courts still handling whether “some effect on counsel’s against clearly test the state court decision particular aspects likely” of the trial was underlying prin- established constitutional potential due to the conflict. Lock- ciples, Supreme as laid out hari, Court. (articulating stan- (9th effect). Giurbino, Ferrizz v. 432 F.3d dard for adverse the dis- Should Cir.2005). trict court conclude that an actual conflict posture Given the current in Estelle footnote found The I concur that the precedent, Court Nevada propensi- as to reservation McGuire did not violate AEDPA in Supreme Court preclude question does ty evidence deciding Although this claim. the most instead, review; simply points it AEDPA of due is not general standard in Estelle is intended nothing out clearly to meet the established sufficient “express opinion no that issue: We resolve requirement federal law for evi- violate the a state law would on whether dence, be mindful that when we must if the use permitted it Due Process Clause applicable there is propen- evidence to show ‘prior crimes’ precedent, federal law charged crime” because sity to commit a review, applied on should be habeas even to decide the “need not reach the issue” expressly declined to 75 n. case. 502 U.S. Ig- Robinson specific decide the issue. Ferrizz, (1991); see also 116 L.Ed.2d 385 Cir.2004) nacio, (holding type a similar F.3d at 993 (“ sufficiently ‘rules of law be clear review). AEDPA preclude footnote did not they purposes habeas even when are ex- generalized of a standard pressed terms the Su- The then is whether “ ”) (quot- a bright-line rather than as rule’ legal sufficient has ‘broken preme Court Williams, 529 U.S. at asked-for consti- ground to establish [the] 1495). proverbial pass” “take a foot- the lower fed- principle, tutional [because] not AEDPA re- prevent note alone should establish courts cannot themselves eral view. clarity with sufficient principle such a Ferrizz, AEDPA bar.’” 432 satisfy the RE- II. STRICKLAND PREJUDICE IS Tay- 993-94(quoting at Williams QUIRED FOR ASUCCESSIVE lor, 120 S.Ct. U.S. REPRESENTATION CLAIM (2000)). Supreme Court L.Ed.2d 389 I as to Part II of the respectfully dissent directly pro- on whether spoken has not majority, relying on state opinion. The violates the Constitution’s pensity evidence improperly re- precedent, court and circuit in process found the guarantee of due to show Strickland lieves Alberni’s burden Significantly, Amendment. Fourteenth Amendment succes- prejudice for his Sixth pro- for process current reach of due the claim. Strickland re- representation sive past does not extend the pensity evidence binding precedent for successive mains the of “fun- generic very narrow standard claims, clearly and no es- representation con- fairness” or “fundamental damental has Supreme precedent Court tablished justice,” Dowling v. ceptions of United prejudice. of presumption imported States, 342, 352-53, 110 S.Ct. 493 U.S. 174-75, Mickens, at 535 U.S. which, (1990), for the 107 L.Ed.2d 708 reversing the state court and By clearly established purposes of AEDPA’s Strickland, in of granting relief violation barely step one requirement, federal law contrary to clear majority’s view is the recitation removed from the Constitution’s AEDPA— precedent and Supreme Court supply itself. The scant of due appli- “shall entertain the federal courts to the Supreme precedent applicable Court corpus in of habeas behalf cation for writ not, my in does propensity evidence issue custody pursuant in person of a “clearly estab- opinion, sufficient provide the only judgment of a state law, by the custody Federal as determined in violation of lished that he is ground un- of the of the States” or laws or treaties Supreme Court United the Constitution 2254(a) States,” (emphasis § add- 2254(d)(1). United §der then, ed), just years ago, of the claim must be land. And few the and the basis abundantly clear in “clearly Court made Mickens grounded upon established Feder- presumption prejudice that a is com- law, Supreme al as determined pletely unsupported repre- successive 2254(d)(1); § States.” Court the United Mickens, In sentation cases. Court 405-06, Williams, 120 S.Ct. see 529 U.S. Appeals chastised the Courts of that had “clearly prece- (using improperly presumed prejudice a vari- point to illustrate the dent” of Strickland ety attorney conflict situations outside governing Supreme Court law context, in- the concurrent prerequisite as a must be identified cluding involving cases “counsel’s obli- review). AEDPA gations to clients.” 535 U.S. at former Strickland, Court estab- 174, 122 presumption S.Ct. 1237. Such a counsel, lished that error even if “[a]n unreasonable, according is incorrect and unreasonable, professionally does not war- Mickens, prece- because setting judgment rant aside the of a crimi- establish, dent “does not or indeed nal proceeding the error had no effect on support, even expansive application” such judgment.... [A]ny deficiencies in prophylaxis concur- Sullivan outside performance prejudicial counsel’s must be representation. rent Id. at 122 S.Ct. to the defense in order to constitute inef- added). (emphasis This statement is fective assistance under the Constitution.” far than more definitive (cita- 691-92, S.Ct. 2052 ambiguous “open question” Court’s often omitted). Sullivan, Citing Cuyler tions Estelle, approach. Compare 502 U.S. at 75 335, 345-50, S.Ct; (“Because 5,n. we need (1980), represen- L.Ed.2d 333 a concurrent issue, express opin- reach the no earlier, years tation case decided four ...”). ion. Mickens is more akin to “the recognized attorney that certain question is decided and closed until further may give presumption conflicts rise to a of notice.” prejudice so-called Sullivan prophy- —the way, pointedly Put another Mickens “[prejudice presumed only laxis—but if may counsels that a state court conviction the defendant demonstrates counsel not be reversed federal habeas review ‘actively represented conflicting interests’ upon a showing mere of an actual conflict and that ‘an actual conflict of interest ad- representation a successive case— versely lawyer’s perform- affected his prejudice always Strickland is and has ” Strickland, 692, ance.’ 466 U.S. at required by Supreme been the Court re Sullivan, (quoting S.Ct. 2052 446 U.S. at gardless of what circuit or state court 1708) added). (emphasis The precedent might say. Earp v. Orno Supreme only Court was clear: it is in sky (9th Cir.2005) 1184-85 (i.e., representation concurrent cases ac- (affirming state court decision because interests) representation conflicting tive there was no established federal prophylaxis applies. that the Sullivan relieving prejudice requirement law the then, question, The any is whether Su- Strickland). Thus, Alberni must show “ preme precedent supports Court an exten- that, ‘a probability reasonable but for sion of outside repre- Sullivan concurrent errors, unprofessional counsel’s the result sentation into representation. successive proceeding of the would have been differ ” In the time between Mickens, Strickland and the ent.’ decision, Supreme Court’s Strickland, Nevada the (quoting 466 U.S. at 2052); United States Supreme Court did not indi- 104 Earp, accord 431 F.3d at cate a from move the confines of Strick- 1184-85. If cannot prejudice, and Nevada he establish what is

From the record readily apparent point Apparently of a remand? the opinion, it is past majority mistakenly preju- counsel’s or believes that this case involves defense so, may presumed. doing a The dice be representation former of witness. majority improperly of Alberni at relies on the representation same counsel’s repre- precedent. a court decision and circuit a later date deemed successive questions pre- are thus sentation. Two The Al Nevada Court denied there was an actual con- sented: whether representation berni’s successive claim un prejudiced flict and whether Alberni was ground der the Amendment on the Sixth But if there were from the conflict. even that Alberni did not an actual establish conflict, prejudice, Alber- an actual absent so, conflict. In doing the Nevada court Strickland, ni’s claim fails. See 466 U.S. presumed prejudice from alleged con 2052(“When 695, 104 S.Ct. a defendant law, Relying flict. on state the Nevada n conviction, challenges question is Supreme quoted its case Clark v. probability whether there is a reasonable State, 108 Nev. 831 P.2d that, errors, absent the factfinder (1992), proposition for the actual “[a]n would have had a reasonable doubt re- adversely conflict of interest which affects Woodford, specting guilt.”); Allen v. lawyer’s performance will result (“[E]ven (9th Cir.2005) F.3d presumption of prejudice the defen deficient, arguably counsel’s conduct was . However, dant.” a review of reveals Clark light overwhelming evidence of that the circumstances involved a conflict guilt, [petitioner] preju- cannot establish arising repre of interest out of concurrent dice.”). sentation; representation. not successive prejudice may easily be though is at presumption Even this odds Significantly, resolved on this record. Strickland, with affirm a habeas Nevada Court held that there any ground supported by denial on overwhelming evidence of Alberni’s record, reasoning even if the differs from overwhelming evidence guilt, and court. v. Bun- of the lower Garcia rendered harmless evidence of Cir.1994) nell, against violence admitted Alberni. The (§ AEDPA the appellate case where finding is not unreasonable and a court’s court affirmed the denial of a Sixth supports review of the record same Amendment conflict-free alleged conclusion for the conflict. Conse- than that of- grounds claim on different per- quently, even there were deficient court); also Coo- fered the district see counsel, it was formance Alberni’s Cambra, perwood v. 245 F.3d because, in light harmless error of the Cir.2001) (holding that a state “when guilt, overwhelming evidence of there was standard, wrong legal court employs that, probability but for no reasonable the AEDPA rule of deference does errors, unprofessional counsel’s the result McCarthy, apply”); Hinman would been differ- proceeding of the have (“It (9th Cir.1982) [state is not the ent. in measuring is our rod habeas law] which proceedings, the federal Consti- acknowledging corpus the lack of but Instead is to determine whether majority proposes to re- tution. Our task prejudice, constitutional petitioner’s] conflict. To federal hearing [the mand for on the violated.”) conflict, (citing rights have been what avail? If there is a then 2254(a)). affirming the ground § The for required Alberni will still be to demon- court’s denial here is that Alberni prejudice; presumed. it cannot be state strate attempt preju- grant only to show Strickland and then relief if the decision is does not dice; support contrary does the record such to or an application neither unreasonable Williams, a finding. precedent.1 of that at U.S. 412,120 always “We have held majority upon the The seizes courts, habeas, that federal even on have presumption, reasoning court’s ill-advised independent obligation say what the whether prejudice that “[t]he (internal is,” law at id. S.Ct. 1495 in rep- must be shown cases successive omitted), quotations marks and the law is that the resentation is one Court according Strickland specifically open Majori- left Mickens.” Court. Contrary ty Op. majority’s at 9191. purposes, AEDPA reasoning, Strick- Contrary controlling Supreme Court prejudice “open question” land is not an in precedent, majority incorrectly adopts representation successive cases. The Su- presumption prejudice a successive preme unambiguously advised that case, representation citing the Nevada Su- precedent support its does not such an preme and circuit precedent. Mickens, 174-75, application. 2254(a) (d)(1). § I & would not order an 122 S.Ct. 1237. evidentiary hearing because even if there were an actual conflict from the successive majority by relying further errs on representation, it would be harmless in circuit precedent court to circumvent the light overwhelming Al- evidence of prejudice requirement, pointing Strickland guilt berni’s and the absence of Strickland Mayle post- Lewis v. Ninth Circuit —a I prejudice. would therefore affirm the AEDPA successive case— state court’s denial of stated, Alberni’s Sixth discussion, where without “ claim. Amendment petitioner that if a can show ‘an actual adversely conflict of interest [that] affected lawyer’s .... performance’ [he] need prejudice

not show to the outcome of the (9th Cir.2004)

trial.” 391 F.3d Sullivan,

(quoting 446 U.S. at 1708). passing This statement LaMERE, Plaintiff-Appellant, Clifford necessary holding, Lems was not to its which granting was limited to the habeas SLAUGHTER, Director, William De- petition based the state court’s unrea- partment Corrections; Mike Maho- sonable determination that there was no ney, Warden, Prison, Montana State actual importantly, conflict. Id. More Defendants-Appellees. however, terms, in AEDPA this statement Mickens, standing simply alone wrong. No. 05-35588. 174-75, S.Ct. 1237. Appeals, United States Court of mayWe not reverse the Nevada Su- Ninth Circuit.

preme reasoning Court’s decision under Argued May and Submitted 2006. violates the Court’s dictate. Filed Aug. 2006. Cooperwood, 245 F.3d at 1046. We test the court only against decision precedent,

United States is, course, ("Circuit precedent helpful Circuit precedent at 1182 is relevant AEDPA, only our determinations under but it is to the extent that it clarifies what consti- binding law.”). on the states. tutes SeeEarp,

Case Details

Case Name: Jose Enrique Alberni v. E.K. McDaniel Frankie Sue Del Papa State of Nevada

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 9, 2006

Citation: 458 F.3d 860

Docket Number: 05-15570

Court Abbreviation: 9th Cir.