concurring in part and dissenting in part:

I concur in Part I of the opinion. I write separately because it is important to underscore that the Supreme Court’s decision to pass on a question, even expressly, is not automatically the death knell for habeas relief. I dissent as to Part II because the attorney conflict issue here involves successive representation and Alberni is required to establish prejudice under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). The majority relieves him of this burden, an approach — as explained in Mickens v. Taylor, 535 U.S. 162, 174-75 , 122 S.Ct. 1237 , 152 L.Ed.2d 291 (2002) — -that has not been established by Supreme Court precedent.

I. AEDPA RELIEF MAY BE AVAILABLE FOR RESERVED ISSUES

I concur in Part I of the opinion, with the understanding that the Supreme Court’s reservation of a specific question, expressly or otherwise, does not, in itself, preclude habeas review under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254 . In these situations, federal courts may still test the state court decision against clearly established underlying constitutional principles, as laid out by the Supreme Court. Ferrizz v. Giurbino, 432 F.3d 990, 993 (9th Cir.2005).

*875 The footnote found in Estelle v. McGuire as to reservation of the propensity evidence question does not preclude AEDPA review; instead, it simply points out that nothing in Estelle is intended to resolve that issue: We “express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of ‘prior crimes’ evidence to show propensity to commit a charged crime” because we “need not reach the issue” to decide the case. 502 U.S. 62 , 75 n. 5, 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991); see also Ferrizz, 432 F.3d at 993 (holding a similar type footnote did not preclude AEDPA review).

The question then is whether the Supreme Court has “ ‘broken sufficient legal ground to establish [the] asked-for constitutional principle, [because] the lower federal courts cannot themselves establish such a principle with clarity sufficient to satisfy the AEDPA bar.’” Ferrizz, 432 F.3d at 993-94 (quoting Williams v. Taylor, 529 U.S. 362, 381 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000)). The Supreme Court has not spoken directly on whether propensity evidence violates the Constitution’s guarantee of due process found in the Fourteenth Amendment. Significantly, the current reach of due process for propensity evidence does not extend past the generic and very narrow standard of “fundamental fairness” or “fundamental conceptions of justice,” Dowling v. United States, 493 U.S. 342, 352-53 , 110 S.Ct. 668 , 107 L.Ed.2d 708 (1990), which, for the purposes of AEDPA’s clearly established federal law requirement, is barely one step removed from the Constitution’s recitation of due process itself. The scant supply of Supreme Court precedent applicable to the propensity evidence issue does not, in my opinion, provide sufficient “clearly established Federal law, as determined by the Supreme Court of the United States” under § 2254(d)(1).

Given the current posture of Supreme Court precedent, I concur that the Nevada Supreme Court did not violate AEDPA in deciding this claim. Although the most general standard of due process is not sufficient to meet the clearly established federal law requirement for propensity evidence, we must be mindful that when there is applicable and clearly established federal law in Supreme Court precedent, it should be applied on habeas review, even if the Supreme Court expressly declined to decide the specific issue. Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir.2004) (“ ‘rules of law may be sufficiently clear for habeas purposes even when they are expressed in terms of a generalized standard rather than as a bright-line rule’ ”) (quoting Williams, 529 U.S. at 382 , 120 S.Ct. 1495 ). The proverbial “take a pass” footnote alone should not prevent AEDPA review.

II. STRICKLAND PREJUDICE IS REQUIRED FOR ASUCCESSIVE REPRESENTATION CLAIM

I respectfully dissent as to Part II of the opinion. The majority, relying on state court and circuit precedent, improperly relieves Alberni’s burden to show Strickland prejudice for his Sixth Amendment successive representation claim. Strickland remains the binding precedent for successive representation claims, and no clearly established Supreme Court precedent has imported a presumption of prejudice. Mickens, 535 U.S. at 174-75 , 122 S.Ct. 1237 . By reversing the state court and granting relief in violation of Strickland , the majority’s view is contrary to clear Supreme Court precedent and AEDPA— the federal courts “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States,” § 2254(a) (emphasis add *876 ed), and the basis of the claim must be grounded upon “clearly established Federal law, as determined by the Supreme Court of the United States.” § 2254(d)(1); see Williams, 529 U.S. at 405-06 , 120 S.Ct. 1495 (using the “clearly established precedent” of Strickland to illustrate the point that the governing Supreme Court law must be identified as a prerequisite for AEDPA review).

In Strickland , the Supreme Court established that “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.... [A]ny deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” 466 U.S. at 691-92 , 104 S.Ct. 2052 (citations omitted). Citing Cuyler v. Sullivan, 446 U.S. 335, 345-50 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980), a concurrent representation case decided four years earlier, the Court recognized that certain attorney conflicts may give rise to a presumption of prejudice — the so-called Sullivan prophylaxis — but “[prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” Strickland, 466 U.S. at 692 , 104 S.Ct. 2052 (quoting Sullivan, 446 U.S. at 350 , 100 S.Ct. 1708 ) (emphasis added). The Supreme Court was clear: it is only in concurrent representation cases (i.e., active representation of conflicting interests) that the Sullivan prophylaxis applies.

The question, then, is whether any Supreme Court precedent supports an extension of Sullivan outside concurrent representation into successive representation. In the time between Strickland and the Nevada Supreme Court’s decision, the United States Supreme Court did not indicate a move from the confines of Strickland . And then, just a few years ago, the Court made it abundantly clear in Mickens that a presumption of prejudice is completely unsupported in successive representation cases. In Mickens , the Court chastised the Courts of Appeals that had improperly presumed prejudice in a variety of attorney conflict situations outside the concurrent representation context, including cases involving “counsel’s obligations to former clients.” 535 U.S. at 174 , 122 S.Ct. 1237 . Such a presumption is incorrect and unreasonable, according to Mickens , because Supreme Court precedent “does not clearly establish, or indeed even support, such expansive application” of the Sullivan prophylaxis outside concurrent representation. Id. at 175, 122 S.Ct. 1237 (emphasis added). This statement is far more definitive than the Supreme Court’s often ambiguous “open question” approach. Compare Estelle, 502 U.S. at 75 n. 5, 112 S.Ct; 475 (“Because we need not reach the issue, we express no opinion. ...”). Mickens is more akin to “the question is decided and closed until further notice.”

Put another way, Mickens pointedly counsels that a state court conviction may not be reversed on federal habeas review upon a mere showing of an actual conflict in a successive representation case— Strickland prejudice is and has always been required by the Supreme Court regardless of what circuit or state court precedent might say. See Earp v. Ornosky 431 F.3d 1158, 1184-85 (9th Cir.2005) (affirming state court decision because there was no clearly established federal law relieving the prejudice requirement of Strickland). Thus, Alberni must show “ ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Mickens, 535 U.S. at 166 , 122 S.Ct. 1237 (quoting Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 ); accord Earp, 431 F.3d at 1184-85 .

*877 From the record and Nevada Supreme Court opinion, it is readily apparent that this case involves defense counsel’s past or former representation of a witness. The same counsel’s representation of Alberni at a later date is deemed a successive representation. Two questions are thus presented: whether there was an actual conflict and whether Alberni was prejudiced from the conflict. But even if there were an actual conflict, absent prejudice, Alberni’s claim fails. See Strickland, 466 U.S. at 695 , 104 S.Ct. 2052 (“When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.”); Allen v. Woodford, 395 F.3d 979, 999 (9th Cir.2005) (“[E]ven if counsel’s conduct was . arguably deficient, in light of the overwhelming evidence of guilt, [petitioner] cannot establish prejudice.”).

The question of prejudice may be easily resolved on this record. Significantly, the Nevada Supreme Court held that there was overwhelming evidence of Alberni’s guilt, and that this overwhelming evidence rendered harmless propensity evidence of violence admitted against Alberni. The court’s finding is not unreasonable and a review of the record supports the same conclusion for the alleged conflict. Consequently, even if there were deficient performance by Alberni’s counsel, it was harmless error because, in light of the overwhelming evidence of guilt, there was no reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Instead of acknowledging the lack of prejudice, the majority proposes to remand for a hearing on the conflict. To what avail? If there is a conflict, then Alberni will still be required to demonstrate prejudice; it cannot be presumed. If he cannot establish prejudice, what is the point of a remand? Apparently the majority mistakenly believes that prejudice may be presumed. In doing so, the majority improperly relies on the state court decision and circuit precedent.

The Nevada Supreme Court denied Alberni’s successive representation claim under the Sixth Amendment on the ground that Alberni did not establish an actual conflict. In doing so, the Nevada court presumed prejudice from the alleged conflict. Relying on state law, the Nevada Supreme ■ Court quoted its case Clark v. State, 108 Nev. 324 , 831 P.2d 1374, 1376 (1992), for the proposition that “[a]n actual conflict of interest which adversely affects a lawyer’s performance will result in a presumption of prejudice to the defendant.” However, a review of Clark reveals that the circumstances involved a conflict of interest arising out of concurrent representation; not successive representation.

Even though this presumption is at odds with Strickland , we may affirm a habeas denial on any ground supported by the record, even if the reasoning differs from that of the lower court. Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir.1994) (§ 2254 AEDPA case where the appellate court affirmed the denial of a Sixth Amendment conflict-free representation claim on grounds different than that offered by the district court); see also Cooperwood v. Cambra, 245 F.3d 1042, 1046 (9th Cir.2001) (holding that “when a state court employs the wrong legal standard, the AEDPA rule of deference does not apply”); Hinman v. McCarthy, 676 F.2d 343, 349 (9th Cir.1982) (“It is not the [state law] which is our measuring rod in habeas corpus proceedings, but the federal Constitution. Our task is to determine whether [the petitioner’s] federal constitutional rights have been violated.”) (citing § 2254(a)). The ground for affirming the state court’s denial here is that Alberni *878 does not attempt to show Strickland prejudice; neither does the record support such a finding.

The majority seizes upon the state court’s ill-advised presumption, reasoning that “[t]he question whether prejudice must be shown in cases of successive representation is one that the Supreme Court specifically left open in Mickens.” Majority Op. at 9191. Contrary to the majority’s reasoning, for AEDPA purposes, Strickland prejudice is not an “open question” in successive representation cases. The Supreme Court unambiguously advised that its precedent does not support such an application. Mickens, 535 U.S. at 174-75 , 122 S.Ct. 1237 .

The majority further errs by relying on circuit court precedent to circumvent the Strickland prejudice requirement, pointing to Lewis v. Mayle — a Ninth Circuit postAEDPA successive representation case— where the court stated, without discussion, that if a petitioner can show “ ‘an actual conflict of interest [that] adversely affected his lawyer’s performance’ .... [he] need not show prejudice to the outcome of the trial.” 391 F.3d 989, 997 (9th Cir.2004) (quoting Sullivan, 446 U.S. at 348 , 100 S.Ct. 1708 ). This passing statement in Lems was not necessary to its holding, which was limited to granting the habeas petition based on the state court’s unreasonable determination that there was no actual conflict. Id. More importantly, however, in AEDPA terms, this statement standing alone is simply wrong. Mickens, 535 U.S. at 174-75 , 122 S.Ct. 1237 .

We may not reverse the Nevada Supreme Court’s decision under reasoning that violates the Supreme Court’s dictate. See Cooperwood, 245 F.3d at 1046 . We test the state court decision only against United States Supreme Court precedent, and then grant relief only if the decision is contrary to or an unreasonable application of that precedent. 1 Williams, 529 U. S. at 412,120 S.Ct. 1495 . “We have always held that federal courts, even on habeas, have an independent obligation to say what the law is,” id. at 411 , 120 S.Ct. 1495 (internal quotations marks omitted), and the law is Strickland according to the Supreme Court.

Contrary to controlling Supreme Court precedent, the majority incorrectly adopts a presumption of prejudice in a successive representation case, citing the Nevada Supreme Court and circuit precedent. See § 2254(a) & (d)(1). I would not order an evidentiary hearing because even if there were an actual conflict from the successive representation, it would be harmless in light of the overwhelming evidence of Alberni’s guilt and the absence of Strickland prejudice. I would therefore affirm the state court’s denial of Alberni’s Sixth Amendment claim.

. Circuit precedent is, of course, helpful in our determinations under AEDPA, but it is not binding on the states. SeeEarp, 431 F.3d at 1182 ("Circuit court precedent is relevant only to the extent that it clarifies what constitutes clearly established law.”).