Richard Bridgewater v. Ernie Roe , 450 F. App'x 651 ( 2011 )

FILED
NOT FOR PUBLICATION SEP 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICHARD BRIDGEWATER, No. 10-16649
Petitioner - Appellant, D.C. No. 2:02-cv-00971-LKK-
KJM
v.
ERNIE ROE, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Submitted August 29, 2011 **
San Francisco, California
Before: BERZON and BYBEE, Circuit Judges, and GRAHAM, Senior District
Judge.***
Petitioner Richard Bridgewater appeals the district court’s denial of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable James L. Graham, Senior District Judge for the U.S.
District Court for Southern Ohio, Columbus, sitting by designation.
petition for a writ of habeas corpus. He presents two arguments: 1) his sentence
violates the Eighth Amendment’s prohibition against cruel and unusual punishment
because it is disproportionate to the sentence his co-defendant received, and 2) his
trial counsel’s previous work as a deputy district attorney and campaign for
District Attorney created a conflict of interest that precluded constitutionally
effective assistance of counsel.
Bridgewater fails to cite any binding precedent supporting a proportionality
review analysis that compares a defendant’s sentence to that of his co-defendant.
The factors that are relevant to a proportionality review are: “(i) the gravity of the
offense and the harshness of the penalty; (ii) the sentences imposed on other
criminals in the same jurisdiction; and (iii) the sentences imposed for commission
of the same crime in other jurisdictions.” Solem v. Helm, 463 U.S. 277, 292
(1983). The Supreme Court has declined, even in capital cases, to add an
additional layer of review based on sentences received by co-defendants. Pulley v.
Harris, 465 U.S. 37, 42–44 (1984). Verdicts that are inconsistent between
defendants are not constitutionally impermissible, see United States v. Hughes
Aircraft Co., 20 F.3d 974, 977–78 (9th Cir. 1994), and if the punishments that
proceed from those verdicts are not grossly disproportionate to the crimes
committed, there is no violation of a petitioner’s Eighth Amendment rights.
2
Turning to Bridgewater’s Sixth Amendment claim, Bridgewater must show
that his “counsel’s representation fell below an objective standard of
reasonableness” when compared to prevailing professional norms. Strickland v.
Washington, 466 U.S. 668, 688 (1984). In the context of a claim of ineffective
counsel claim due to a conflict of interest, a petitioner must show both that an
actual conflict of interest existed and that his counsel’s performance was adversely
affected as a result of this conflict. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
Bridgewater fails to do so. His claim is based solely on his counsel’s prior
relationship with the district attorney’s office. Even if he were to go so far as to
allege that his counsel had prosecuted him before in that position—which he does
not—that would not automatically produce an actual conflict of interest. See
Maiden v. Bunnell, 35 F.3d 477, 480–81 (9th Cir. 1994). The petitioner must show
that his counsel was “required to undermine, criticize, or attack his or her own
work product,” or that his loyalties were otherwise divided. Id. at 481 (citing
Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir. 1988)). Bridgewater has produced
no such evidence. He has also not “point[ed] to some aspect of [his counsel’s] trial
performance which was a likely adverse effect stemming from the alleged conflict
of interest.” Id. at 482. There is thus no reason to believe that his counsel was
ineffective.
3
Bridgewater is not entitled to relief on either his Eighth Amendment or Sixth
Amendment claim.
AFFIRMED.
4