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 2017-10

Bruce Birch v. Renee Baker , 711 F. App'x 852 ( 2017 )


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  •                                                                             FILED
NOT FOR PUBLICATION
OCT 16 2017
UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE BIRCH,                                     No.   15-17429
Petitioner-Appellant,              D.C. No.
2:11-cv-00516-GMN-CWH
v.
RENEE BAKER, Warden,                             MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding
Submitted September 13, 2017**
San Francisco, California
Before: SCHROEDER and TALLMAN, Circuit Judges, and WHALEY,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
Petitioner Bruce Birch appeals the district court’s order denying his petition
for writ of habeas corpus under 28 U.S.C. § 2254. We review de novo. Hedlund v.
Ryan,
    854 F.3d 557
    , 565 (9th Cir. 2017). Habeas relief may not be granted unless
the state court’s “last reasoned decision” adjudicating the merits of the claim—in
this case, the Nevada Supreme Court decision—is “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see also Amado v.
Gonzalez,
    758 F.3d 1119
    , 1130 (9th Cir. 2014). We affirm.
Birch argues that he was denied his Sixth Amendment right to effective
assistance of counsel based on an “actual conflict of interest” with his lawyer,
Bruce Lindsay. To establish a Sixth Amendment violation, a petitioner must show
that (1) his lawyer “actively represented conflicting interests,” and (2) the “actual
conflict of interest adversely affected his lawyer’s performance.” Cuyler v.
Sullivan,
    446 U.S. 335
    , 348, 350 (1980); see also United States v. Baker,
    256 F.3d 855
    , 860 (9th Cir. 2001).
Birch claims that an “actual conflict of interest” arose, after Birch spat on
Lindsay’s face during pretrial proceedings and stabbed Lindsay’s hand with a
pencil during one of his trials. However, the Supreme Court has only recognized
“actual conflicts of interest” in joint representation cases, whereby an attorney
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represents multiple clients with divergent interests. See, e.g., Mickens v. Taylor,
    535 U.S. 162
    , 166–69 (2002); Holloway v. Arkansas,
    435 U.S. 475
    , 487–90
(1978); Glasser v. United States,
    315 U.S. 60
    , 75–76 (1942), superseded by rule on
other grounds, Bourjaily v. United States,
    483 U.S. 171 
    (1987). Further, the record
does not reflect that any alleged conflict of interest “adversely affected” Lindsay’s
performance. Despite the spitting and stabbing incidents, Lindsay continued to
zealously represent Birch during two trials and sentencing. Therefore, the Nevada
Supreme Court’s decision was not contrary to clearly established federal law.
AFFIRMED.
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