FILED

NOT FOR PUBLICATION JAN 24 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL B. CARTER, No. 09-17869

Petitioner - Appellant, D.C. No. 2:04-cv-00272-MSB

v.

MEMORANDUM*

A. K. SCRIBNER and ATTORNEY

GENERAL FOR THE STATE OF

CALIFORNIA,

Respondents - Appellees.

Appeal from the United States District Court for the Eastern District of California Marsha S. Berzon, Circuit Judge, Presiding

Argued and Submitted January 10, 2011 San Francisco, California

Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges.

Michael Carter appeals from the district court’s denial of his petition for

habeas corpus filed pursuant to 28 U.S.C. § 2254. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Carter pled no contest to the allegation of attempted murder with an

enhancement for personal use of a firearm. He was sentenced to a determinate

sentence of twenty-five years. Carter claims that his plea was not knowing and

involuntary because he was denied the effective assistance of counsel due to his

trial counsel’s conflicts of interest. The facts are known to the parties. We need

not recite them.

This court reviews de novo a district court’s decision to grant or deny a

habeas corpus petition under 28 U.S.C. § 2254. Yee v. Duncan, 463 F.3d 893, 897

(9th Cir. 2006). To obtain relief under § 2254, the state court’s adjudication of the

merits of the case must have “(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or (2) resulted in a decision

that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

Federal courts are to accord more deference to state court decisions underlying a

section 2254 petition with regards to both law and facts, see Miller-El v. Cockrell,

537 U.S. 322, 340 (2003); however, deference to state court decisions applies only

to claims the state court adjudicated on the merits. Lambert v. Blodgett, 393 F.3d

943, 964 (9th Cir. 2004).

2 I

Carter’s first claim is that his attorney’s acquaintance with the victim

amounted to a conflict of interest that resulted in a constructive denial of counsel.

The California Supreme Court’s summary dismissal of Carter’s appeal on this

claim without comment or citation constitutes an adjudication on the merits. See

Gaston v. Palmer, 417 F.3d 1030, 1038 (9th Cir. 2005). However, in light of the

state court’s lack of reasoning, this court reviews the record to determine whether

the state court’s decision was an objectively unreasonable application of

controlling federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

The Sixth Amendment right to effective assistance of counsel includes a

“correlative right to representation that is free from conflicts of interest.” Woods v.

Georgia, 450 U.S. 261, 271 (1981). “[P]rejudice is presumed when counsel is

burdened by an actual conflict of interest.” Strickland v. Washington, 466 U.S.

668, 692 (1984) (citing Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980)). To

establish an actual conflict, the defendant must show that (1) “counsel actively

represented conflicting interests” and (2) that the “actual conflict of interest

adversely affected his lawyer’s performance.” Sullivan, 446 U.S. at 350. To show

an adverse effect, a petitioner must show “that some plausible alternative defense

strategy or tactic might have been pursued but was not and that the alternative

3 defense was inherently in conflict with or not undertaken due to the attorney’s

other loyalties or interests.” United States v. Wells, 394 F.3d 725, 733 (9th Cir.

2005) (quoting United States v. Stantini, 85 F.3d 9, 16 (2d Cir. 1996)).

Here, review of the record reveals that the state court’s denial of the petition

was not an objectively unreasonable application of controlling federal law. Carter

fails to demonstrate how his trial counsel’s previous acquaintance with the victim

constituted an actual conflict. While Carter’s attorney, James Clark, did represent

the victim in an unrelated proceeding where the victim was a complaining witness,

Clark did so months after his representation of Carter was complete. Carter argues

that Clark must have been representing the victim at an earlier point in time and

that Clark must have rushed Carter’s plea so that he could later represent the

victim. Carter’s argument is speculative and ultimately unconvincing. Moreover,

Clark adequately describes why a negotiated plea for a determinate, rather than

indeterminate, sentence was in Carter’s interest, to which Carter fails to

demonstrate any plausible alternative legal strategy or tactic that Clark ignored.

Thus, on review of the record, the state court’s denial of Carter’s claim was not an

unreasonable application of controlling federal law because the evidence does not

reveal an actual conflict.

4 II

Carter’s second claim focuses on Clark’s previous representation of Shane

Lesher in 1997 on charges of auto theft. Months after Carter’s plea, Lesher was

charged in the robbery of the victim, which took place eleven days prior to Carter’s

attempt on the victim. Although no one, including Carter, places Lesher at the

scene of the attempted murder, Clark refers to Lesher as a “putative co-defendant”

because the victim initially told police that he suspected his assailant was the same

person who had robbed him eleven days prior. Notwithstanding Carter’s

admission to police that he fired the gun as well as his failure to ever mention

Lesher as a co-defendant, Carter now refers to Lesher as a “putative co-defendant”

and argues that Clark’s previous representation of Lesher constituted an actual

conflict. The California Supreme Court’s dismissal of this claim on procedural

grounds does not constitute an adjudication on the merits. See Lambert, 393 F.3d

at 969. Because the Respondents waived the affirmative defense of procedural

default by failing to raise it in the district court and on appeal, this court reviews

the claim de novo. Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005).

“In successive representation, conflicts of interest may arise if the cases are

substantially related or if the attorney reveals privileged communications of the

former client or otherwise divides his loyalties.” Hovey v. Ayers, 458 F.3d 892,

5 908 (9th Cir. 2006) (citation omitted). Here, Carter’s claim that Clark’s previous

representation of Lesher resulted in a conflict of interest has no merit. Carter does

not produce any

evidence to show that Clark’s previous representation of Lesher on a charge of

auto theft was substantially related to Carter’s attempted murder proceeding. Nor

does Carter demonstrate how Clark’s previous representation of Lesher divides his

loyalty to Carter. Carter fails to show how Clark’s previous representation of

Lesher constituted a conflict, and thus, the court denies the claim.

AFFIRMED.

6

FILED

Carter v. Scribner, No. 09-17869 JAN 24 2011 Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in the result.