Alberni

MEMORANDUM ***

Appellant Jose Enrique Alberni has filed an application for an interlocutory appeal from the district court’s order certifying the following question to the Nevada Supreme Court: “Should prejudice be presumed under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), when a defendant’s lawyer’s cross-examination is adversely affected due to the lawyer’s prior representation of that witness?” We have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1292 (b).

I

In our prior opinion, this court vacated the district court’s denial of Alberni’s application for a writ of habeas corpus pursuant to § 2254(a) based on its determination that his Sixth Amendment right to conflict-free representation was not violated by his trial counsel’s cross-examination of a prosecution witness who had been a former client of Alberni’s counsel. Alberni v. McDaniel, 458 F.3d 860, 874 (9th Cir. 2006). We directed the district court to conduct an evidentiary hearing to determine whether “some effect on counsel’s handling of particular aspects of the trial was likely” due to the potential conflict. Id. at 874 . In its mandate, this court also…