Clifford Chew v. Guy Hall ( 2010 )

FILED
NOT FOR PUBLICATION DEC 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CLIFFORD CHEW, No. 09-35801
Petitioner - Appellant, D.C. No. 6:07-cv-01330-AA
v.
MEMORANDUM *
GUY HALL, Warden, TRCI,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Submitted December 9, 2010 **
Seattle, Washington
Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and MOSKOWITZ,
District Judge.***
*
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 Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
Chew claims that the trial court violated his Sixth Amendment rights when it
appointed Earl Woods to advise his brother Rodney before Rodney testified.
However, Chew did not object to the court’s decision at trial, and he did not fairly
present his claim of trial court error on direct appeal to the Oregon Court of
Appeals or the Oregon Supreme Court. He failed to reference federal law or the
United States Constitution in his Balfour brief, and he cited no cases in support of
his claim that would have alerted those courts to the federal nature of his claim.
See Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005). Oregon law
therefore barred Chew from bringing this claim of trial court error in state post-
conviction review proceedings. See Palmer v. State, 867 P.2d 1368, 1373 (Or.
1994).
Because Chew was procedurally barred from raising the issue in state post-
conviction review, his federal claim is likewise procedurally defaulted. Coleman v.
Thompson, 501 U.S. 722, 728–29 (1991). Chew has not demonstrated cause for
the default or actual prejudice as a result of the alleged violation of federal law. Id.
at 750. Nor has Chew shown that “failure to consider the claims would result in a
fundamental miscarriage of justice.” Id.Insofar as Chew claims that Woods violated his Sixth Amendment right to
conflict-free counsel by advising Rodney, Chew fails to state a viable Sixth
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Amendment claim. Mickens v. Taylor, 535 U.S. 162, 174 (2002). Woods did not
represent Chew at trial, and had not represented Chew for the six weeks before
trial. Therefore, Chew cannot possibly show that an “actual conflict of interest
adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335,
349 (1980) (emphasis added).
AFFIRMED
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