Campbell v. Rice, No. 99-17311.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtClifton
Citation408 F.3d 1166
PartiesAnthony Alexander CAMPBELL, Petitioner-Appellant, v. Bert RICE, Respondent-Appellee.
Docket NumberNo. 99-17311.
Decision Date20 May 2005

Page 1166

408 F.3d 1166
Anthony Alexander CAMPBELL, Petitioner-Appellant,
v.
Bert RICE, Respondent-Appellee.
No. 99-17311.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted En Banc December 15, 2004.
Filed May 20, 2005.

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COPYRIGHT MATERIAL OMITTED

Page 1168

Howard M. Ullman (argued), Walter F. Brown, Jr., San Francisco, CA, for the petitioner-appellant.

Peggy S. Ruffra (argued), John R. Vance, Jr., Office of the Attorney General, State of California, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California, Saundra B. Armstrong, District Judge, Presiding. D.C. No. CV-98-03265-SBA.

Before: SCHROEDER, Chief Judge, FERGUSON, REINHARDT, RYMER, KLEINFELD, SILVERMAN, GRABER, WARDLAW, GOULD, CLIFTON and JAY S. BYBEE, Circuit Judges.

CLIFTON, Circuit Judge:


Petitioner Anthony Alexander Campbell appeals the denial by the district court of his petition for habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his California state court burglary conviction on two grounds. He argues that his trial counsel provided ineffective assistance because of a conflict of interest: she was being prosecuted at the same time by the same district attorney's office. In addition, he maintains that the trial court violated his due process rights by excluding him from an in-chambers meeting attended by the trial judge, the prosecutor, and his defense attorney, during which the court was informed of the prosecution of the defense attorney and concluded that the attorney did not have a conflict of interest. When presented with these arguments, the California state courts denied relief to Petitioner. Applying the deferential standard of review established under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we affirm the district court's denial of the habeas petition.

I. BACKGROUND

On May 26, 1995, the police arrested Petitioner while he was attempting to burglarize a home. After he consented to a search of his vehicle, the police recovered jewelry and other personal property. A later search of Petitioner's home resulted in the discovery of 239 items that had been reported stolen by individuals whose homes had been burglarized. Based on this evidence, the Santa Clara County District Attorney's Office charged Petitioner with multiple counts of first-degree burglary and several counts of attempted burglary.

Petitioner retained attorney Maureen McCann to represent him, and McCann appeared on his behalf at the December 4, 1995, preliminary hearing. A month later, on January 9, 1996, McCann was herself arrested for attempting to transport methamphetamine into the San Martin Criminal Court Justice Facility. The Santa Clara

Page 1169

County District Attorney's Office charged her with one count of felony drug possession. On February 6, 1996, McCann was arraigned.

Petitioner's trial commenced two days later. On the first day of trial, the court held a private in-chambers conference with McCann and the deputy district attorney who was prosecuting Petitioner. Petitioner was not notified of this meeting and did not attend. During this conference, the deputy district attorney informed the court that his office was prosecuting McCann on unspecified charges. The deputy district attorney represented to the court that his office would not give McCann favorable treatment under any circumstances. McCann declined to comment. The trial court then concluded that McCann's simultaneous prosecution by the district attorney's office did not present a conflict of interest concerning her continued representation of Petitioner.1

The trial proceeded, and the jury found Petitioner guilty of eighteen counts of first-degree burglary and one count of attempted first-degree burglary. The trial court sentenced him to serve an aggregate term of fourteen years in prison. Petitioner filed a direct appeal and a state habeas petition with the California Court of Appeal. That court affirmed his conviction and denied his habeas petition on December 15, 1997. Petitioner then sought review from the California Supreme Court, which denied review of both matters on April 1, 1998.

Petitioner filed a habeas petition under 28 U.S.C. § 2254 in federal district court on August 25, 1998. The district court denied this petition, and Petitioner filed a timely notice of appeal. The certificate of appealability (COA) granted by a two-judge panel of this court only encompasses the question of whether Petitioner received effective assistance of counsel. We expand the COA to consider the question of whether Petitioner's right to due process was violated.

II. DISCUSSION

We review de novo the district court's decision to deny Petitioner's habeas petition. Bean v. Calderon, 163 F.3d 1073, 1077 (9th Cir.1998). Because the petition was filed after April 24, 1996, the effective date of AEDPA, the provisions of that statute apply. Rios v. Rocha, 299 F.3d 796, 799 n. 4 (9th Cir.2002).

Page 1170

Under AEDPA, a habeas petition cannot be granted unless the state court decision was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). AEDPA's "clearly established law" requirement limits the area of law on which a habeas court may rely to those constitutional principles enunciated in Supreme Court decisions. See Williams v. Taylor, 529 U.S. 362, 381-82, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Only Supreme Court precedents are binding on state courts under AEDPA, but our precedents may be pertinent to the extent that they illuminate the meaning and application of Supreme Court precedents. Casey v. Moore, 386 F.3d 896, 907 (9th Cir.2004). When applying these standards, we review the "last reasoned decision" by a state court. See Avila v. Galaza, 297 F.3d 911, 918 (9th Cir.2002).

A. Ineffective Assistance of Counsel

We first consider whether the state court's determination that the alleged conflict of interest did not cause Petitioner's attorney to render ineffective assistance was contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d). The Sixth Amendment right to counsel includes the "correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). Upon notification that an actual or potential conflict of interest exists, a trial court has the obligation "either to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel." Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); see also Wood, 450 U.S. at 272 & n. 18, 101 S.Ct. 1097. If the trial court fails to undertake either of these duties, the defendant's Sixth Amendment rights are violated. See Holloway, 435 U.S. at 484, 98 S.Ct. 1173. Even if a defendant's Sixth Amendment rights have been violated in this manner, though, the defendant cannot obtain relief unless he can demonstrate that his attorney's performance was "adversely affected" by the conflict of interest. Mickens v. Taylor, 535 U.S. 162, 174, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002).2

In its treatment of Petitioner's case, the California Court of Appeal assumed that an actual conflict of interest existed and reviewed what had occurred to determine whether Petitioner's representation was adversely affected. The approach adopted by the court of appeal, which led to its rejection of Petitioner's ineffective assistance of counsel argument, was not contrary to clearly established federal law.

Nor was the state court's decision an unreasonable application of federal law to the facts of the case. As noted, the state court of appeal assumed there had been a conflict of interest and denied relief because it concluded that the representation of Petitioner had not been adversely affected. Petitioner raises two arguments to demonstrate that his attorney's performance was adversely affected.

First, Petitioner maintains that his attorney improperly waived a hearing on the admissibility of the DNA evidence because,

Page 1171

as of the date of the trial, the California appellate courts had not stated in a published opinion that the method of DNA testing used, known as PCR, was admissible. The record indicates, however, that at trial, the prosecution requested that the court take judicial notice of the numerous times that PCR blood tests had been previously deemed admissible in the Santa Clara County Superior Court. Furthermore, after Petitioner's trial, the California appellate courts concluded that PCR blood testing is generally accepted as a reliable technique by the relevant scientific community. See People v. Morganti, 43 Cal.App.4th 643, 50 Cal.Rptr.2d 837, 855 (1996). Thus, as the state court of appeal determined, the record provides no basis to conclude that a challenge to the admissibility of the DNA evidence would have been successful. See Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir.1994) (concluding that an attorney's failure to file a motion was not ineffective assistance of counsel and noting that the attorney's decision not to file the motion was "vindicated by the results in related cases" where the motions were made, but they failed).

Second, Petitioner argues that McCann provided ineffective assistance by failing to present evidence of other burglaries which occurred in the area but as to which Petitioner had not been charged. In concluding that this claim did not demonstrate that Petitioner's representation was adversely affected, the state court correctly recognized that the fact that other crimes had occurred in the area did not exonerate Petitioner. In addition, McCann's decision...

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  • Rienhardt v. Shinn, CV-03-0290-TUC-DCB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • November 8, 2021
    ...Mouzin, 785 F.2d 682, 704 (9th Cir. 1986). Violation of the right to be present is subject to harmless error analysis. Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir. 2005) (citing Rushen v. Spain, 464 U.S. 114, 117 (1983) (per curiam)). Respondents contend that the in-camera conferences ad......
  • Perkins v. Brazelton, Case No. 1:13-cv-01205 LJO MJS (HC)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 28, 2015
    ...the deprivation, by its very nature, cannot be harmless," a violation of the right to be present may be harmless error. Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir. 2005) (en banc) (quoting Rushen v. Spain, 464 U.S. at 117 n.2 (1983) (per curiam) (finding harmless an ex parte communicati......
  • People v. Davis, No. S012945.
    • United States
    • United States State Supreme Court (California)
    • July 21, 2005
    ...824, 17 L.Ed.2d 705. (People v. Robertson (1989) 48 Cal.3d 18, 62, 255 Cal.Rptr. 631, 767 P.2d 1109; see Campbell v. Rice (9th Cir.2005) 408 F.3d 1166, 1171-72.) Error under sections 977 and 1043 is state law error only, and therefore is reversible only if "`it is reasonably probable that a......
  • Jensen v. Hernandez, No. CIV S–09–0512 DAD P.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 30, 2012
    ...is subject to harmless error analysis. Rushen v. Spain, 464 U.S. 114, 117, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983); Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir.2005). Even if Judge Orr erred in excluding petitioner from the initial in-chambers meeting at which the subject of petitioner's re......
  • Request a trial to view additional results
136 cases
  • Rienhardt v. Shinn, CV-03-0290-TUC-DCB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • November 8, 2021
    ...Mouzin, 785 F.2d 682, 704 (9th Cir. 1986). Violation of the right to be present is subject to harmless error analysis. Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir. 2005) (citing Rushen v. Spain, 464 U.S. 114, 117 (1983) (per curiam)). Respondents contend that the in-camera conferences ad......
  • Perkins v. Brazelton, Case No. 1:13-cv-01205 LJO MJS (HC)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 28, 2015
    ...the deprivation, by its very nature, cannot be harmless," a violation of the right to be present may be harmless error. Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir. 2005) (en banc) (quoting Rushen v. Spain, 464 U.S. at 117 n.2 (1983) (per curiam) (finding harmless an ex parte communicati......
  • People v. Davis, No. S012945.
    • United States
    • United States State Supreme Court (California)
    • July 21, 2005
    ...824, 17 L.Ed.2d 705. (People v. Robertson (1989) 48 Cal.3d 18, 62, 255 Cal.Rptr. 631, 767 P.2d 1109; see Campbell v. Rice (9th Cir.2005) 408 F.3d 1166, 1171-72.) Error under sections 977 and 1043 is state law error only, and therefore is reversible only if "`it is reasonably probable that a......
  • Jensen v. Hernandez, No. CIV S–09–0512 DAD P.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 30, 2012
    ...is subject to harmless error analysis. Rushen v. Spain, 464 U.S. 114, 117, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983); Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir.2005). Even if Judge Orr erred in excluding petitioner from the initial in-chambers meeting at which the subject of petitioner's re......
  • Request a trial to view additional results

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