Robinson

FILED

NOT FOR PUBLICATION FEB 22 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

FRED LAWRENCE ROBINSON, No. 05-99007

Petitioner - Appellant, D.C. No. CV-96-00669-JAT

v.

MEMORANDUM *

DORA B. SCHRIRO, Director,

Respondent - Appellee.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding

Argued December 6, 2007 Submitted February 22, 2010 San Francisco, California

Before: B. FLETCHER, BERZON and RAWLINSON, Circuit Judges.

Petitioner Fred Lawrence Robinson appeals the district court's denial of his

petition for habeas corpus. We grant his petition in an opinion filed

contemporaneously with this memorandum. In this memorandum we address

Robinson's remaining claims.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. A. Claim

Robinson contends that he was denied the effective assistance of counsel at

trial because counsel labored under an actual conflict of interest that…

MEMORANDUM *

Petitioner Fred Lawrence Robinson appeals the district court’s denial of his peti *803 tion for habeas corpus. We grant his petition in an opinion filed contemporaneously with this memorandum. In this memorandum we address Robinson’s remaining claims.

A. Claim

Robinson contends that he was denied the effective assistance of counsel at trial because counsel labored under an actual conflict of interest that Robinson never personally waived and that adversely affected counsel’s performance. The district court held that this claim was procedurally barred because Robinson had not exhausted it in state court. Robinson concedes that he did not raise this claim in any state court appellate or post-conviction proceeding, but he argues Rule 32.2(a)(3) of the Arizona Rules of Criminal Procedure, which requires a knowing, voluntary, and intelligent waiver for claims “of sufficient constitutional magnitude,” applies to his failure to exhaust.

A claim is proeedurally barred if it was fairly presented in the state court and dismissed on procedural grounds or if it was not fairly presented and the petitioner would now be barred under state procedural rales from raising it in…

concurring:

I concur in the denial of Claims 1 through 4 and would also deny Claim 5.