NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 6 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARY ELLEN SAMUELS, No. 20-99005

Petitioner-Appellant, D.C. No. 2:10-cv-03225-SJO

v.

MEMORANDUM*

JANEL ESPINOZA, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Argued and Submitted November 18, 2021 Pasadena, California

Before: WARDLAW and HURWITZ, Circuit Judges, and BOUGH,** District Judge.

Mary Ellen Samuels, a California state prisoner, appeals the district court’s

judgment denying guilt-phase relief on her 28 U.S.C. § 2254 habeas corpus

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. petition.1 We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Reviewing de

novo under the standard set forth in the Antiterrorism and Effective Death Penalty

Act (“AEDPA”), Demetrulias v. Davis, 14 F.4th 898, 905 (9th Cir. 2021), we

affirm.

The sole issue certified by the district court for appeal was its rejection of

Claim 5, which asserted ineffective assistance of counsel (“IAC”) by James

Robelen, the attorney who represented Samuels at her preliminary hearing, whom

Samuels claimed had a conflict of interest. The California Supreme Court could

reasonably have determined that Robelen’s representation of James Bernstein and

Samuels was successive rather than concurrent because Bernstein died before

Samuels’s right to counsel attached. See Wood v. Georgia, 450 U.S. 261, 271

(1981) (right to conflict-free counsel applies where a constitutional right to counsel

exists); United States v. Olson, 988 F.3d 1158, 1160 (9th Cir. 2021) (per curiam)

(the right to counsel attaches when a defendant is charged). We therefore do not

presume prejudice. See Cuyler v. Sullivan, 446 U.S. 335, 348, 349-50 (1980)

(prejudice is presumed only if petitioner demonstrates that counsel “actively

represented conflicting interests” and that “an actual conflict of interest adversely

affected [her] lawyer’s performance”); Noguera v. Davis, 5 F.4th 1020, 1036 (9th

1 The district court granted habeas relief as to the death sentence imposed on Samuels. The state does not seek review of that decision.

2 Cir. 2021) (“[T]here is no clearly established Supreme Court precedent applying

Sullivan’s presumed-prejudice standard to successive representation.”).

Samuels cannot show actual prejudice from Robelen’s failure to disclose

Bernstein’s alleged confession at the preliminary hearing because she cannot show

a reasonable probability that, absent this failure, the result of the proceeding would

have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (a

claim of ineffective assistance of counsel requires a showing of both ineffective

assistance and prejudice); Noguera, 5 F.4th at 1039 (quoting Strickland, 466 U.S.

at 694) (“To establish prejudice, a petitioner ‘must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’”). As “the showing required at a

preliminary hearing is exceedingly low,” Salazar v. Superior Ct., 83 Cal. App. 4th

840, 846 (2000), we affirm the district court’s denial of Claim 5. See Harrington

v. Richter, 562 U.S. 86, 98 (2011) (stating that when the California Supreme Court

summarily denies a claim, the petitioner must show that “there was no reasonable

basis for the state court to deny relief”); Demetrulias, 14 F.4th at 912 (AEDPA

review of a state court’s denial of a Strickland claim is doubly deferential).

Samuels seeks to expand the certificate of appealability (“COA”) by

presenting uncertified issues in her opening brief. See 9th Cir. R. 22-1(e). We

expand the COA to include Claim 6, which asserts IAC because of trial counsel’s

3 decision not to call Robelen to testify that Bernstein had confessed to the murder of

Robert Samuels. We nonetheless affirm the district court’s denial of Claim 6

because the California Supreme Court could reasonably have concluded that this

was a reasonable strategic decision by trial counsel. See Richter, 562 U.S. at 106;

Demetrulias, 14 F.4th at 912–13; Jurado v. Davis, 12 F.4th 1084, 1100 (9th Cir.

2021) (“[W]ide latitude is given to defense counsel in making tactical decisions.”).

We decline to issue a COA on the remaining issues because Samuels has not

shown that “jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 28 U.S.C. § 2253(c)(2);

Gonzalez v. Thaler, 565 U.S. 134, 140–41 (2012).

AFFIRMED.

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