Matthew Moore v. Joe Schmidt

FILED
NOT FOR PUBLICATION AUG 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW MARK MOORE, No. 12-35668
Plaintiff - Appellant, D.C. No. 2:09-cv-00002-SLG
v.
MEMORANDUM*
JOE SCHMIDT,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Submitted August 13, 2013**
Anchorage, Alaska
Before: KOZINSKI, Chief Judge, BERZON and IKUTA, Circuit Judges.
1. The Alaska Court of Appeals concluded that Moore was not
constructively denied counsel. This was not “contrary to, or [] an unreasonable
application of, clearly established Federal law, as determined by the Supreme
*
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).
page 2
Court of the United States.” 28 U.S.C. § 2254(d)(1). Failure to subject a
prosecutor’s case to adversarial testing will only constitute constructive denial of
counsel when “‘counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing.’” Bell v. Cone, 535 U.S. 685, 697 (2002) (quoting
United States v. Cronic, 466 U.S. 648, 659 (1984)). Moore’s lawyer presented his
desired intoxication defense at trial. Additionally, the Supreme Court has never
found that a criminal defendant has a right to a meaningful relationship with his
attorney. Morris v. Slappy, 461 U.S. 1, 13–14 (1983). In any event, the
proposition that a serious breakdown in the attorney-client relationship may rise to
a constructive denial of counsel is not “clearly established” by Supreme Court
precedent.
2. Moore cites no Supreme Court case to support his claim that the trial
court’s inquiry into his motion to substitute counsel was inadequate. As such, he
failed to satisfy AEDPA’s threshold for reviewing a state court adjudication on the
merits. See 28 U.S.C. § 2254(d).
AFFIRMED.