Demathews

MEMORANDUM *

1. DeMathews fails to meet the “substantial hurdle,” Maiden v. Bunnell, *20 35 F.3d 477, 481 (9th Cir.1994), of showing that his counsel’s conflict of interest “adversely affected” the quality of representation, Mickens v. Taylor, 535 U.S. 162, 174 , 122 S.Ct. 1237 , 152 L.Ed.2d 291 (2002). Brooklier’s tactical decision not to call Agent Orr a liar in a bench trial, when Orr had already admitted that his grand jury testimony was “mistaken,” falls short of demonstrating that the conflict had a “significant impact on counsel’s representation of the client before the court or in negotiations with the government.” United States v. Mett, 65 F.3d 1531, 1535-36 (9th Cir.1995).

Because there was no adverse effect, we need not decide whether DeMathews’s waiver of his attorney’s known conflict of interest was sufficiently knowing and intelligent. See Jennings v. Woodford, 290 F.3d 1006, 1011 (9th Cir.2002).

2. DeMathews’s allegation that Agent Orr testified falsely at trial is pure speculation. We therefore reject his prosecutorial misconduct claims. See Napue v. Illinois, 360 U.S. 264, 269 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 (1959). There was no error, much less plain error.…