Jose Enrique Alberni v. E.K. McDaniel Frankie Sue Del Papa State of Nevada

Petitioner José Enrique Alberni appeals from the order denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 . Mr. Alberni was convicted of Second Degree Murder With Use of a Deadly Weapon in Nevada state court. He argues that his Fourteenth Amendment due process rights were violated by the introduction of character evidence at his trial and that his Sixth Amendment right to conflict-free counsel was violated by his trial counsel’s cross-examination of a prosecution witness who had been his attorney’s client. The Nevada Supreme Court’s conclusion that Mr. Alberni’s right to due process was not violated was not contrary to and did not involve an unreasonable application of federal law. We vacate and remand for an evidentiary hearing to determine whether Mr. Alberni’s right to conflict-free counsel was violated.

I

We first consider whether Mr. Alberni’s due process rights were violated by the introduction of propensity evidence at his trial.

A

On Christmas Day, 1994, Mr. Alberni shot and killed his friend Dennis McElroy. At trial, Mr. Alberni claimed that the shooting was accidental. The jury was persuaded that it was deliberate and con *863 vieted…

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…

458 F.3d 860 Jose Enrique ALBERNI, Petitioner-Appellant, v. E.K. McDANIEL; Frankie Sue del Papa; State of Nevada, Respondents-Appellees. No. 05-15570. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 16, 2006. August 9, 2006. Paul G. Turner, Assistant Federal Public Defender, Las Vegas, NV, for the petitioner-appellant. John M. Warwick, Office of Attorney General, Criminal Justice Division, Carson City, NV, for the respondents-appellees. Appeal from the United States District Court for the District of Nevada; David Warner Hagen, District Judge, Presiding. D.C. No. CV-01-00725-DWH. Before ARTHUR L. ALARCÓN and M. MARGARET McKEOWN, Circuit Judges, and H. RUSSEL HOLLAND, * Senior District Judge. ALARCÓN, Circuit Judge. 1 Petitioner José Enrique Alberni appeals from the order denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 . Mr. Alberni was convicted of Second Degree Murder With Use of a Deadly Weapon in Nevada state court. He argues that his Fourteenth Amendment due process rights were violated by the introduction of character evidence at his trial and that his Sixth Amendment right to conflict-free…