Plumlee

ORDER AMENDING OPINION AND DISSENT AND AMENDED OPINION AND AMENDED DISSENT BETTY B. FLETCHER, Circuit Judge.

ORDER

The majority opinion and the dissenting opinion filed October 18, 2005, slip op. 14223, appearing at 426 F.3d 1095 (9th Cir.2005), are hereby amended. The amended opinion and amended dissent are filed concurrently herewith. The opinion and dissent are amended as follows:

1. Addition of footnote to 426 F.3d at 1107 , end of paragraph 2:

Recently, in United States v. Gonzalez-Lopez, -U.S. -, 126 S.Ct. 2557 , 165 L.Ed.2d 409 (2006), the Supreme Court reaffirmed that the Sixth Amendment guarantees not only the right to legal counsel, but also the distinct right of a criminal defendant to be represented by his attorney of choice. Writing for the majority, Justice Scalia further held that “erroneous deprivation of the right to counsel of choice” is structural error requiring the reversal of a subsequent conviction. Id. at 2564 . The Court also explicitly noted that the right to counsel of choice “does not extend” to cases in which defendants “require counsel to be appointed for them.” Id. at 2565 .

Plumlee’s claim is different. He was deprived entirely of legal…

dissenting.

Bypassing the clear restraints enacted by Congress in AEDPA, and fashioning a new rule raising a defendant’s suspicions and personal pique to constitutional dimensions, the majority orders the release of Plumlee thirteen years after he was imprisoned — for two terms of life without the possibility of parole — for robbing and murdering Wilbur Richard Beard. Were that not enough, the majority’s “irreconcilable conflict” rule augurs innumerable problems for public defenders and trial courts; if allowed to stand, it will generate volumes of litigation for both direct and collateral appeals for years to come.

*925 I fundamentally disagree with the majority’s presentation of the facts, their reading of the law, and their conclusion that the Nevada Supreme Court’s decision rejecting petitioner Plumlee’s “irreconcilable conflict” claim was “an unreasonable application of clearly established Federal law” under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), 28 U.S.C. § 2254 (d)(1).

First, the facts. The majority skews their rendition of the facts by largely relying on only one version of the story — the story presented by Plumlee. The majority fails to…

Volume 1 of

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LARY JAMES PLUMLEE,  No. 04-15101 Petitioner-Appellant, D.C. No. v. CV-00-00244-

FRANKIE SUE DEL PAPA; JOHN DWH/VPC

IGNACIO, ORDER

Respondents-Appellees.  AMENDING

OPINION AND

DISSENT AND

AMENDED

OPINION AND

AMENDED

 DISSENT

Appeal from the United States District Court for the District of Nevada David Warner Hagen, District Judge, Presiding

Argued and Submitted November 2, 2004—San Francisco, California

Filed October 18, 2005 Amended October 11, 2006

Before: Betty B. Fletcher, Sidney R. Thomas, and Carlos T. Bea, Circuit Judges.

Opinion by Judge B. Fletcher; Dissent by Judge Bea

17377 PLUMLEE v. DEL PAPA 17381

COUNSEL

Jason F. Carr, Assistant Federal Public Defender, Las Vegas, Nevada, for the petitioner-appellant.

Victor-Hugo Schulze II, Deputy Attorney General, Las Vegas, Nevada, for the respondent-appellee. With him on the briefs was Joseph W. Long.

ORDER

The majority opinion and the dissenting opinion filed Octo- ber 18, 2005, slip op.…