Clifford Chew v. Guy Hall
Clifford CHEW, Petitioner-Appellant, v. Guy HALL, Warden, TRCI, Respondent-Appellee
- Proceeding
- appeal
- Trial court
- United States District Court for the District of Oregon
- Trial judge
- Ann L. Aiken (district judge)
- Outcome
- affirmed — AFFIRMED
- Area
- criminal
- Panel
- Diarmuid F. O'Scannlain (author), Richard C. Tallman, Moskowitz
Analysis
No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.
Opinion
FILED NOT FOR PUBLICATION DEC 16 2010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 2 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).