Houston v. Schomig ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE HOUSTON,  No. 06-15523
Petitioner-Appellant,
v.  D.C. No.
CV-04-00785-RLH
JAMES M. SCHOMIG,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Argued and Submitted
February 14, 2008—San Francisco, California
Filed July 22, 2008
Before: William C. Canby, Jr., Milan D. Smith, Jr.,
Circuit Judges, and Stephen G. Larson, District Judge.*
Opinion by Judge Larson;
Partial Concurrence and Partial Dissent by
Judge Milan D. Smith, Jr.
*The Honorable Stephen G. Larson, United States District Judge for the
Central District of California, sitting by designation.
8999
9002 HOUSTON v. SCHOMIG
COUNSEL
Anne R. Traum, Assistant Federal Public Defender, Las
Vegas, Nevada, for the petitioner-appellant.
Rene L. Hulse, Las Vegas, Nevada, Senior Deputy Attorney
General, for the respondent-appellee.
HOUSTON v. SCHOMIG 9003
OPINION
LARSON, District Judge:
Steve Houston, a Nevada state prisoner, appeals from the
district court’s judgment denying his petition for habeas cor-
pus pursuant to 28 U.S.C. § 2254. Houston’s habeas petition
challenges his 2000 jury trial conviction for conspiracy to
commit murder, three counts of attempted murder with the
use of a deadly weapon, and three counts of discharging a
firearm out of a motor vehicle.
Houston contends that his Sixth Amendment rights were
violated when the state trial court denied his motion to con-
tinue the trial so he could be represented by retained counsel,
and denied his appointed counsel’s motion to withdraw based
on a conflict of interest arising from the Clark County Public
Defender’s prior representation of the prosecution’s star wit-
ness. We hold that the trial court’s denial of Houston’s motion
to continue the trial did not violate the Sixth Amendment and
that the Nevada Supreme Court’s rejection of this claim was
neither contrary to, nor an unreasonable application of, federal
law. We vacate and remand for an evidentiary hearing to
determine whether Houston’s right to conflict-free counsel
was violated.
I
We review de novo the denial of habeas relief by a district
court. Polk v. Sandoval, 503 F.3d 903, 909 (9th Cir. 2007).
Houston’s § 2254 petition is governed by the Anti-Terrorism
and Effective Death Penalty Act (“AEDPA”). Under AEDPA,
a state prisoner is entitled to relief only if the state court ruling
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” or
“was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
9004 HOUSTON v. SCHOMIG
28 U.S.C. § 2254(d). A state court’s decision is “contrary to”
federal law if it applies a rule of law different from one set
forth in Supreme Court holdings or makes a different determi-
nation based on “materially indistinguishable facts.” Earp v.
Ornoski, 431 F.3d 1158, 1182 (9th Cir. 2005) (citing Williams
v. Taylor, 529 U.S. 362, 405-06 (2000)). “The ‘unreasonable
application’ clause requires the state court decision to be more
than incorrect or erroneous.” Lockyer v. Andrade, 538 U.S.
63, 75 (2003) (holding that the state decision must be “objec-
tively unreasonable”). When applying AEDPA standards, this
court reviews the “last reasoned decision” addressing the
issue by a state court. See Robinson v. Ignacio, 360 F.3d
1044, 1055 (9th Cir. 2004). The Nevada Supreme Court’s
affirmance on direct appeal is the last reasoned opinion rele-
vant to Houston’s claims.
II
We first consider whether Houston’s Sixth Amendment
rights were violated by the trial court’s denial of his motion
to continue the trial.
[1] To establish a Sixth Amendment violation based on the
denial of a motion to continue, Houston must show that the
trial court abused its discretion through an “unreasoning and
arbitrary ‘insistence upon expeditiousness in the face of a jus-
tifiable request for delay.’ ” Morris v. Slappy, 461 U.S. 1, 11-
12 (1983) (citing Ungar v. Sarafite, 376 U.S. 575, 589
(1964)).
[2] The record supports the state court’s conclusion that the
trial judge acted within his broad discretion in denying Hous-
ton’s motion for a continuance to retain counsel. Specifically,
he confirmed that counsel was able to proceed to trial, evalu-
ated Houston’s diligence in timely retaining private counsel,
and weighed the potential impact a continuance may have had
on the victims and witnesses. The continuance was sought just
four days before trial was scheduled to begin. See Slappy, 461
HOUSTON v. SCHOMIG 9005
U.S. at 13-15 (acknowledging that appropriate factors to con-
sider include administration of justice, difficulty in assem-
bling witnesses, bad faith delaying tactics, victims’ concerns).
Moreover, the motion to continue was based solely on Hous-
ton’s desire to retain counsel because he was unsatisfied with
his public defender’s preparation for trial, not on any potential
conflict of interest. Indeed, the potential conflict was not dis-
covered until after the motion to continue was denied.
Accordingly, the Nevada Supreme Court’s application of
Slappy and denial of relief on this claim was not “objectively
unreasonable.” See 28 U.S.C. § 2254(d)(1); Andrade, 538
U.S. at 75.
III
Next, we consider whether Houston’s right to conflict-free
counsel was violated.
A
Attorney Craig Jorgenson was appointed from the Clark
County Public Defender’s office to defend Houston against
charges that he fired shots from his car into a car driven by
Terrance Chadwick and occupied by two of Chadwick’s sis-
ters. Both the state and the defense agreed that there was a
history of “bad blood” between Houston and Chadwick’s
family. This history included the murder of Chadwick’s
grandmother and the shooting of his brother, for which Hous-
ton was tried and acquitted.
After the jury had been empaneled, Jorgenson discovered
for the first time that the Clark County Public Defender’s
office had represented the victim and key prosecution witness,
Chadwick, in a factually-related case charging Chadwick with
multiple counts of attempted murder with the use of a deadly
9006 HOUSTON v. SCHOMIG
weapon. Ultimately, Chadwick pled guilty to firing a gun into
a house.1
The next morning, before opening arguments, Jorgenson
immediately moved to withdraw from Houston’s case because
he felt conflicted by his office’s prior representation of Chad-
wick. Jorgenson explained that the earlier case involving
Chadwick was “tied, factually, to the state’s theory of retribu-
tion and the motive” in Houston’s case and that Houston’s
defense theory implicated Chadwick as the aggressor. Jorgen-
son told the judge that his “heart is going to be with Mr.
Chadwick,” and that he believed Chadwick had not commit-
ted the crimes in the earlier case, for which Chadwick had
been convicted and served a prison sentence. Such wrongful
conviction, Jorgenson explained, may have given Chadwick
a motive to act as the aggressor toward Houston or to lie in
order to convict Houston out of revenge. Jorgenson also
expressed concern that, under his cross examination, Chad-
wick may admit facts which would expose him to criminal
liability or impact his parole status.
The judge denied the motion to withdraw, finding that no
actual conflict existed because Jorgenson had not personally
represented Chadwick in the previous proceeding. The judge
further found that Chadwick had waived any potential conflict
that may have existed by waiving his attorney-client privilege.
Notably, the trial court did not seek nor require a conflict
waiver from Houston.
At trial, Chadwick was the only witness who testified that
Houston fired shots into the van occupied by Chadwick and
his sisters. As such, his credibility was paramount.
Houston argues that the Clark County Public Defender’s
1
It is not clear from the record whether Chadwick was convicted of
shooting into Houston’s house, but Jorgenson’s representations, as an offi-
cer of the court, suggest that Houston was the intended victim.
HOUSTON v. SCHOMIG 9007
prior representation of Chadwick in a factually-related case
created a conflict, which adversely affected Jorgenson’s trial
performance by limiting his impeachment of Chadwick
through his prior conviction, his parole status, and his failed
polygraph exam.
Based on the trial record alone, the Nevada Supreme Court
denied relief on this claim because Jorgenson had not person-
ally represented Chadwick, Chadwick had waived his
attorney-client privilege, and the prior representation did not
involve the same facts as Houston’s case.2 The Nevada
Supreme Court made no mention of the trial judge’s failure to
obtain a waiver from Houston or of Jorgenson’s subjective
belief that his representation was conflicted.
The district court acknowledged that Chadwick’s earlier
case was “somewhat related” to Houston’s prosecution, but
concluded that Jorgenson performed as any non-conflicted
attorney would have. Without discussing the trial court’s fail-
ure to obtain a waiver from Houston, the district court denied
relief because Houston failed to present evidence demonstrat-
ing that a conflict adversely affected counsel’s performance.
B
[3] The Supreme Court has held that a criminal defendant
has a constitutional right to assistance of conflict-free counsel.
Strickland v. Washington, 466 U.S. 668, 688 (1984). Where
the conflict stems from counsel’s representation of multiple
defendants, the petitioner “must establish that an actual con-
flict of interest adversely affected his lawyer’s performance.”
2
Because Chadwick’s earlier prosecution and Houston’s case involved
many of the same parties and resulted from an ongoing feud between the
families, we respectfully disagree with the Nevada Supreme Court’s deter-
mination that the cases “did not involve the same facts.” See Trone v.
Smith, 621 F.2d 994, 998 (9th Cir. 1980) (“Substantiality is present if the
factual contexts of the two representations are similar or related.”); see
also Fitzpatrick v. McCormick, 869 F.2d 1247, 1252 (9th Cir. 1989).
9008 HOUSTON v. SCHOMIG
Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). The Supreme
Court has defined an “actual conflict” by the effect a potential
conflict had on counsel’s performance. Mickens v. Taylor,
535 U.S. 162, 171 (2002).
[4] Where defense counsel timely points out a conflict of
interest in joint representation, the trial court is required to
investigate further; ignoring counsel’s objection mandates
automatic reversal of the resulting conviction. See Holloway
v. Arkansas, 435 U.S. 475, 488 (1978). Conflicts can also
arise from successive representation, particularly when a sub-
stantial relationship exists between the cases, such that the
“factual contexts of the two representations are similar or
related.” Trone v. Smith, 621 F.2d 994, 998 (9th Cir. 1980);
see also Fitzpatrick v. McCormick, 869 F.2d 1247, 1252 (9th
Cir. 1989). The Supreme Court, however, has left open the
question whether conflicts in successive representation that
affect an attorney’s performance require a showing of preju-
dice for reversal. See Mickens, 535 U.S. at 176.
[5] In this case, after Chadwick waived his attorney-client
privilege, the trial judge concluded that no conflict existed,
without ever inquiring into the impact the prior representation
may have had on Houston or on Jorgenson’s performance.
Indeed, the judge saw “no conflict here whatsoever” and
failed to see “how Mr. Houston has a right to waive any-
thing.” Because any conflict that existed was Houston’s either
to waive or to assert, the trial judge’s exclusive focus on
Chadwick was misplaced, rendering the conflict inquiry inad-
equate. See Lockhart v. Terhune, 250 F.3d 1223, 1232-1233
(9th Cir. 2001). Similarly, the Nevada Supreme Court failed
to reach the issue of whether Jorgenson acted adversely to his
current client, or whether his performance prejudiced Hous-
ton.
[6] The limited record before us reveals that Jorgenson
expressed concern over jeopardizing Chadwick’s parole sta-
tus, stated his belief that Chadwick had been wrongfully con-
HOUSTON v. SCHOMIG 9009
victed in a case related to the ongoing feud at issue in
Houston’s case, and told the judge that his “heart is going to
be with Mr. Chadwick.” On these facts, the trial judge should
have conducted a more complete evidentiary hearing on the
potential conflict. As it now stands, the record is insufficient
for us to determine whether an actual conflict of interest
existed, or whether Jorgenson labored under a perceived con-
flict and limited his cross examination of Chadwick as a
result.
C
The proceedings in Alberni v. McDaniel, 458 F.3d 860 (9th
Cir. 2006), cert. denied, 127 S. Ct. 1834 (2007) are instructive.
In that case, public defender Buchanan represented the
victim-witness, Flamm, prior to representing Alberni. Id. at
867-68. The earlier case involved a drug exchange between
Flamm and Alberni that led to hostilities, later resulting in the
shooting of another man. Id. Buchanan defended Alberni
against charges that he murdered this other man and Flamm
was called as an eyewitness to the altercation. Id. Counsel told
the judge he felt conflicted by the prior representation and
therefore unable to cross examine his former client. Id. at 868.
The judge obtained a waiver of the attorney-client privilege
from Flamm, but not from Alberni. Id. at 868-69. During trial,
Buchanan failed to impeach Flamm through his prior convic-
tion and parole status, among other things. Id. at 869, 872.
Because the record was incomplete, we remanded for an evi-
dentiary hearing to determine whether the attorney’s perfor-
mance was adversely affected by the prior representation. Id.
at 872-73.
Houston argues that Chadwick’s prior conviction, parole
status and failed polygraph exam were available to Jorgenson
to impeach Chadwick’s credibility, but that Jorgenson chose
not to use them. As support, Houston offers a number of
examples in which similar evidence was admitted through
various exceptions to Nevada’s evidentiary rules. The state
9010 HOUSTON v. SCHOMIG
insists, and the dissent would agree, that such evidence was
inadmissable under Nevada law, so Jorgenson could not have
used this information during Chadwick’s cross examination.3
But, as we have already stated, Chadwick’s credibility was a
particularly important aspect of the case and certainly central
to Houston’s defense. We are mindful not to speculate about
Jorgenson’s trial strategy, nor whether the trial judge would
have admitted the impeachment evidence in this case. What
is important is whether Jorgenson modified his representation
of Houston in a way that adversely affected his performance,
see id. at 871; Lockhart, 250 F.3d at 1231, and whether this
effect prejudiced Houston; i.e., whether there is “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. On the incomplete record before
us, we cannot make that determination.
[7] An evidentiary hearing is needed to resolve these fac-
tual issues. AEDPA allows for an evidentiary hearing when
a petitioner (1) alleges facts, which, if proven, would entitle
him to relief; and (2) shows that he did not receive a full and
fair hearing in the state court. See 28 U.S.C. § 2254(e)(2);
Alberni, 458 F.3d at 873. Houston has alleged facts suggest-
ing the existence of a conflict of interest and the prejudicial
effect of Jorgenson’s adverse performance, which, if proven,
would entitle him to relief under Strickland. The trial court
failed to fully investigate Jorgenson’s perceived conflict and
no state court has held a full and fair hearing on this serious
3
While not determinative, it is worth noting that after the evidentiary
hearing in Alberni, the district court concluded that an actual conflict
existed. The district court reasoned that counsel’s failure to impeach the
victim-witness (through means very similar to those available in Hous-
ton’s case and governed by the same Nevada evidentiary rules) evidenced
that Alberni’s attorney curtailed his performance because of a perceived
conflict. See also Lewis v. Mayle, 391 F.3d 989, 997-1000 (9th Cir. 2004)
(holding that counsel’s failure to impeach former client-witness with prior
conviction and probation status amounted to actual conflict adversely
affecting representation).
HOUSTON v. SCHOMIG 9011
conflict allegation. As a result, the Nevada Supreme Court’s
conclusion that no actual conflict existed is based on an
incomplete record, devoid of sworn testimony explaining Jor-
genson’s tactical reasons, if any, for not attempting to vigor-
ously impeach Chadwick with his parole status or failed
polygraph exam. Similarly, the district court prematurely
determined that Jorgenson’s performance was not adversely
affected by a conflict, without hearing from Jorgenson on the
matter.
[8] We are cognizant of the potential increase in litigation
arising from the imputation of one attorney’s conflict to an
entire public defender’s office. However, the facts of this case
are unique and, therefore, unlikely to open any floodgates of
imputed conflict claims. This is particularly true because this
case concerns a longstanding feud between Houston and
Chadwick and the prior representation at issue here was the
direct result of that “bad blood.” We are confident that allow-
ing further exploration of the fact that Jorgenson subjectively
felt conflicted and expressed this to the judge will not create
a broad rule of imputed disqualification.4
[9] We therefore reverse the portion of the district court’s
4
While the dissent correctly points out that neither party formally
requested an evidentiary hearing, Houston raised the need for such a hear-
ing during oral arguments. Moreover, we have previously remanded for an
evidentiary hearing sua sponte “to assist the court in making an accurate
determination.” See Butler v. Curry, 528 F.3d 624, 651 (9th Cir. 2008).
We see a legitimate need for further factfinding in this case before an
accurate determination of the issues can be made. Houston suggested that
Jorgenson failed to “fully disclose what more he might know about this
case,” and even counsel for respondent admitted that it is “possible that
he had some knowledge” about Chadwick’s prior case. During oral argu-
ments, when asked why Jorgenson expressed sympathy for Chadwick,
counsel for respondent replied “I don’t have a clear record on that” and
agreed that it was “odd.” These speculative responses, combined with the
inadequate and confused questioning by the state court, convince us that
further development of the record is required.
9012 HOUSTON v. SCHOMIG
decision pertaining to the conflict of interest and remand with
instructions to conduct an evidentiary hearing to determine
whether a conflict of interest adversely affected counsel’s per-
formance and, if so, whether there is a reasonable probability
that the result of the trial would have been different in the
absence of that effect. See Strickland, 466 U.S. at 694;
Alberni, 458 F.3d at 874. We affirm the remainder of the dis-
trict court’s judgment.
AFFIRMED IN PART, VACATED AND REMANDED
FOR AN EVIDENTIARY HEARING. Each party shall
bear their own costs.
MILAN D. SMITH, JR., Circuit Judge, concurring in part,
dissenting in part:
I concur with Part II’s holding that the trial court’s denial
of the motion to continue was not contrary to or an unreason-
able application of Morris v. Slappy, 461 U.S. 1 (1983). How-
ever, I see no reason to order an evidentiary hearing regarding
the alleged violation of Houston’s Sixth Amendment right to
conflict-free counsel. Houston has never requested a hearing.
Neither has the State. The trial court inquired into the matter,
and it is already apparent that Houston’s claim lacks merit. I
therefore dissent from Part III of the majority opinion.
I.
The Supreme Court has established that, absent a showing
of prejudice under Strickland v. Washington, 466 U.S. 668
(1984), habeas relief can be granted due to the violation of a
defendant’s Sixth Amendment right to conflict-free counsel in
either of two circumstances: First, relief is granted if defense
counsel timely objected to concurrent representation of two or
more defendants with conflicting interests and the trial court
failed to take “adequate steps” to ascertain whether the risk of
HOUSTON v. SCHOMIG 9013
conflict was sufficient to require separate counsel. Holloway
v. Arkansas, 435 U.S. 475, 484 (1978). Second, in any other
case of multiple concurrent representation, relief is granted
only if the defendant demonstrates that an “actual conflict of
interest adversely affected his lawyer’s performance.” Cuyler
v. Sullivan, 446 U.S. 335, 348 (1980); see also Mickens v.
Taylor, 535 U.S. 162, 174-76 (2001). Houston is entitled to
an evidentiary hearing if (1) he alleged facts that, if proven,
would demonstrate a violation of his rights under Holloway or
Sullivan, and (2) he did not receive a full and fair opportunity
to develop those facts. Earp v. Ornoski, 431 F.3d 1158, 1167
(9th Cir. 2005). For the reasons described below, I would hold
that Houston failed to allege facts that would entitle him to
habeas relief under Holloway. I would also hold that Houston
already received a full and fair opportunity to develop the
facts regarding his Sullivan claim, and that those facts estab-
lish the absence of a Sixth Amendment violation.
A.
An evidentiary hearing regarding the adequacy of the trial
court’s inquiry under Holloway clearly is not required. The
record already contains a complete transcript of the December
2000 hearing during which the trial court inquired into Jor-
genson’s alleged conflict of interest. Houston does not con-
tend that additional fact-finding regarding the circumstances
or substance of that hearing is necessary.
Moreover, it is apparent from the existing record that Hous-
ton is not entitled to habeas relief under Holloway. “Holloway
. . . creates an automatic reversal rule only where defense
counsel is forced to represent codefendants over his timely
objection.” Mickens, 535 U.S. at 168 (emphasis added).
Because Jorgenson was representing only one defendant—
Houston—and Houston was not a codefendant with Chad-
wick, it follows that Holloway does not apply.
Even if Holloway applied, I would hold that the trial court
took “adequate steps” to ascertain the risks presented by the
9014 HOUSTON v. SCHOMIG
alleged conflict of interest. The court held a hearing on the
matter in December 2000. During that hearing, the court gave
Jorgenson an opportunity to explain at length the nature of
any conflict and inquired about its anticipated impact on his
ability to cross-examine Chadwick. The court also inquired
about the extent of Jorgenson’s relationship with Chadwick,
Jorgenson’s knowledge of the case in which the public
defender’s office had represented Chadwick, and whether Jor-
genson possessed any confidential information from the prior
representation. The transcript of this discussion spans twenty
pages. The inquiry thus went well beyond the inquiry found
constitutionally inadequate in Holloway. See 435 U.S. at 484
n.7 (explaining that the trial court “cut off any opportunity of
defense counsel to do more than make conclusory representa-
tions”). The majority’s assertion that the trial court “[n]ever
inquir[ed] into the impact the prior representation may have
had on Houston or on Jorgenson’s performance,” Maj. Op. at
9008, is simply not consistent with the record.
The majority concludes that the state trial court’s inquiry
was inadequate because it focused exclusively on whether
Jorgenson’s representation of Houston would be adverse to
Chadwick’s interests, rather than to Houston’s. Maj. Op. at
9008. The premise of that conclusion is incorrect. The trial
court understood the issue to be whether Chadwick’s role as
a government witness would render Jorgenson unable “to
defend [Houston] in a manner that would be otherwise his
defense if another attorney was operating or deferred.” In line
with this understanding, the court asked whether the public
defender’s office’s prior representation of Chadwick would
compromise Jorgenson’s ability to challenge Chadwick’s
veracity as a government witness. The record thus shows that
the trial court correctly understood the issue. Although the
State Supreme Court seems to have misunderstood, Maj. Op.
at 9008, it does not follow that the trial court’s inquiry was
inadequate.
HOUSTON v. SCHOMIG 9015
Barb.
I also disagree that an evidentiary hearing is required to
ascertain whether Houston was deprived of effective assis-
tance of counsel under the Sullivan test. To establish an “ac-
tual conflict of interest”—i.e., one that “adversely affected”
his counsel’s performance, Mickens, 535 U.S. at 172—
Houston would have to show that “some plausible alternative
defense strategy or tactic might have been pursued but was
not and that the alternative defense was inherently in conflict
with or not undertaken due to the attorney’s other loyalties or
interests.” Foote v. Del Papa, 492 F.3d 1026, 1029-30 (9th
Cir. 2007). Houston cannot meet this standard.
The trial court’s December 2000 hearing was not an evi-
dentiary hearing, and only counsel were present, but it was
nevertheless sufficient because the parties’ representations
revealed that mixed personal loyalties could not possibly have
affected Jorgenson’s performance. Those representations
included the following: The public defender’s office for
which Jorgenson worked no longer represented Chadwick.
Jorgenson never personally represented Chadwick, did not
know him, and knew nothing about his prior case other than
that Chadwick had failed a polygraph test. Until the day
before the December 2000 hearing, Jorgenson did not even
know that his office had represented Chadwick. Jorgenson
also confirmed that he had no “inside information or what
might be considered personal or secret information that has
been imparted by Mr. Chadwick to his counsel,” and that he
did not possess “any information concerning Mr. Chadwick
that would not be available to any other defense attorney.”
Houston does not dispute the accuracy of any of these state-
ments. Considering them together, Jorgenson’s isolated asser-
tion that he could not effectively represent Houston because
his “heart [would] be with . . . Chadwick” was, to put it
mildly, incredible. We should not fault the state trial court for
declining to conduct an evidentiary hearing that no one has
9016 HOUSTON v. SCHOMIG
requested, on an assertion of divided loyalty that cannot possi-
bly be credited.
An evidentiary hearing is also unnecessary to determine
whether the interest of the public defender who previously
represented Chadwick can be imputed to Jorgenson in a man-
ner that renders the representation ineffective. The relevant
facts are already apparent, and no court has held an actual
conflict to exist for the purposes of the Sixth Amendment
purely on the basis of such a relationship. As we have recog-
nized, the Supreme Court has never extended Sullivan to cir-
cumstances involving either successive representation or
imputed conflicts, much less to circumstances involving both.
See Earp, 431 F.3d at 1184 (“Mickens . . . specifically and
explicitly concluded that Sullivan was limited to joint repre-
sentation.”); Lambert v. Blodgett, 393 F.3d 943, 986 (9th Cir.
2004) (“[T]he Supreme Court has never applied the ethical
imputed disqualification rule in Sixth Amendment analysis.”).
By emphasizing the particularly high probability of prejudice
in cases of multiple concurrent representation, Mickens sug-
gests that, if anything, the Court is disinclined to extend Sulli-
van to circumstances such as those encountered by Houston.
See Mickens, 535 U.S. at 174-76. At least two circuits, more-
over, have held that one attorney’s representation of a defen-
dant in a trial involving a government witness previously
represented by another attorney from the same office does not
on its own give rise to an actual conflict of interest. See
United States v. Blount, 291 F.3d 201, 212 (2d Cir. 2002);
United States v. McCullah, 76 F.3d 1087, 1098-99 (10th Cir.
1996). Other courts have similarly held that successive repre-
sentation of defendants with adverse interests by different
attorneys at a public defender’s office does not independently
create an actual conflict. See United States v. Trevino, 992
F.2d 64, 65-66 (5th Cir. 1993); Salam v. Lockhart, 874 F.2d
525, 527-28 (8th Cir. 1989). Insofar as the majority is order-
ing an evidentiary hearing to enable Houston to explore a
Sixth Amendment claim based solely on an imputed conflict
of interest, our decision is at odds with this precedent and the
HOUSTON v. SCHOMIG 9017
Supreme Court’s instruction that the Sixth Amendment does
not protect against a “mere theoretical division of loyalties.”
Mickens, 535 U.S. at 171.
Finally, Houston has failed even to allege that, due to the
conflict, some “plausible alternative defense strategy or tactic
might have been pursued but was not.” Foote, 492 F.3d at
1029-30 (emphasis added); see also Campbell v. Rice, 408
F.3d 1166, 1170-71 (9th Cir. 2005) (en banc) (holding that the
petitioner failed to show adverse effect because the trial tac-
tics that counsel neglected to pursue would not have suc-
ceeded). The conflict of interest purportedly caused Jorgenson
to refrain only from impeaching Chadwick with evidence that
he had failed a polygraph, pled guilty to felony firearms
charges in 1998, and spent time as a parolee thereafter. None
of these tactics would have succeeded.
Polygraph results are admissible under Nevada law only
when the prosecuting attorney, the defendant, and defense
counsel all stipulate in writing for the defendant’s submission
to the test. Jackson v. State, 997 P.2d 121, 121-22 (Nev.
2000). Houston does not contend that the required stipulations
were made, and the prosecutor specifically explained at the
December 2000 hearing that Chadwick’s polygraph results
would not be admissible. Jorgenson therefore cannot be
faulted for declining to cross-examine Chadwick on the mat-
ter. If he had, the prosecutor would have objected, and the
trial court would have sustained the objection.
Houston also cannot claim adverse effect on the basis of
Jorgenson’s cross-examination regarding Chadwick’s prior
felony conviction. Evidence of such a conviction is generally
admissible for the purpose of attacking witness credibility.
Nev. Rev. Stat. § 50.095(1). However, “the details and cir-
cumstances of the prior crimes are . . . not appropriate sub-
jects of inquiry.” Plunkett v. State, 437 P.2d 92, 93 (Nev.
1968). Jorgenson asked Chadwick whether he had pled guilty
in 1998 to a felony for “firing a gun into a house.” Chadwick
9018 HOUSTON v. SCHOMIG
responded that he had. Any further inquiry would have been
precluded by Plunkett. This rule was also made apparent to
Jorgenson at the pretrial hearing in December 2000.
Nor would Jorgenson have been permitted to cross-
examine Chadwick about his parole status. Nevada Revised
Statutes § 50.095(1) permits an opposing party to impeach a
witness with evidence of a prior felony conviction, but it pro-
hibits inquiry into the resulting sentence. Jacobs v. State, 532
P.2d 1034, 1036 (Nev. 1975). Houston fails to articulate any
theory on which the evidence of Chadwick’s parole status
would have been relevant.
I do not find Alberni v. McDaniel, 458 F.3d 860 (9th Cir.
2006), to be controlling. We remanded for an evidentiary
hearing on a Sullivan claim in that case because, unlike here,
the trial court never inquired into the possible adverse impact
of the alleged conflict on the defendant’s representation. 458
F.3d at 871. The absence of such an inquiry was particularly
problematic because there was ample reason to believe that
the defense attorney had limited cross-examination of his own
former client due to the conflict. The attorney objected to
cross-examining the witness, and when the witness took the
stand the attorney declined to impeach him on multiple mate-
rial issues notwithstanding the apparent admissibility of the
impeachment evidence. Id. at 868-69. The cross-examination
itself took up only three pages of transcript. Id. at 869. By
contrast, the cross-examination of Chadwick, which covered
over thirty pages, closely questioned Chadwick’s recollection
of the crime and pointed out internal inconsistencies in his
testimony. Coupling this fact with the complete unfamiliarity
between Jorgenson and Chadwick, and with the absence of
even an allegation of a plausible alternative defense strategy,
we have no reason to suspect the possibility of an actual con-
flict of interest.
HOUSTON v. SCHOMIG 9019
II.
The majority’s approach will burden district courts with
evidentiary hearings even on obviously unmeritorious Sixth
Amendment claims. I would affirm the denial of the petition.